Filed 5/27/22 Palm v. Red Lobster Hospitality LLC CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LE’ELDRED PALM, SR., B309233
Plaintiff and Respondent,
Los Angeles County
v. Super. Ct. No. 20STCV07929
RED LOBSTER HOSPITALITY
LLC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Rafael A. Ongkeko, Judge. Affirmed.
Baker & Hostetler, Shareef S. Farag, Joseph S. Persoff and
Amy E. Beverlin for Defendant and Appellant.
Le’Eldred Palm, Sr., in pro. per., for Plaintiff and
Respondent.
____________________________________
SUMMARY
Plaintiff Le’Eldred Palm, Sr., sued Red Lobster Hospitality
LLC (Red Lobster or defendant) and two of its employees, alleging
causes of action for negligence, intentional infliction of emotional
distress, violation of the Unruh Civil Rights Act (Civ. Code, § 51),
and violation of the Tom Bane Civil Rights Act (Bane Act, Civ.
Code, § 52.1). Defendant filed an anti-SLAPP (strategic lawsuit
against public participation, Code Civ. Proc., § 425.16) motion to
strike the complaint. (Undesignated statutory references are to
section 425.16.) The trial court granted the motion in part and
denied it in part. Defendant appeals, contending the court should
have struck the entire complaint.
We affirm the trial court’s order.
FACTS
1. Plaintiff’s Complaint
In early 2018, plaintiff, an African-American male,
patronized the Red Lobster restaurant in Lakewood. On one of
those occasions, plaintiff was sitting at the bar talking with
another man. When the bartender, Robert Gagnon, served him his
drink, he said, “There you go boss.” Plaintiff “immediately started
having heart palpitations, shortness of breath, and began to
sweat.” He told the bartender not to call him “boss” because “it
was a racial stereotype.” The bartender laughed and “half heartily
apologized.”
When a new bartender came on duty, plaintiff asked to
speak to a manager. The manager, Luis Perez, said that the
bartender “was trying to serve you better.” Plaintiff explained that
the term “boss” refers to “gang bangers, thugs, and drug dealers,”
and asked the manager if he was aware of the Unruh Civil Rights
Act. Plaintiff informed Mr. Perez that the Unruh Civil Rights Act
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prohibits all forms of stereotypical discrimination in all business
establishments, and that the manager should know about the Act.
After that incident, plaintiff patronized the restaurant
several times over several weeks, but “was concerned about
whether or not Red Lobster’s employees would retaliate against
him for complaining about being racially stereotyped.”
On March 8, 2018, several weeks after the “boss” incident,
plaintiff met with William Drake at the restaurant. While they
were talking at the bar, Mr. Drake accidentally knocked over his
glass of wine and the glass broke. Plaintiff went to the restroom to
clean the wine from his shoes, and as he was returning, a group of
people at a table complimented his African attire. While showing
them how it was made, plaintiff accidentally knocked over a glass
of wine that was close to the edge of their table. Plaintiff
apologized and the group accepted his apology “in a kind and
friendly manner.”
Plaintiff returned to the bar area, and a few minutes later, a
young man “tapped [plaintiff] on his left shoulder and told
[plaintiff] ‘we have to ask you to leave.’ ” Steven Patch was the
manager who asked plaintiff to leave. Plaintiff refused. A few
minutes later, three deputy sheriffs entered the restaurant, and
asked to speak with plaintiff outside. Plaintiff complied, and “was
then told by one of the deputies he had knocked over a cart and
broke some glasses.” He told them he did not knock over a cart or
break any glasses. One of the deputies said, “they don’t want you
here, you have to leave.”
On March 12, 2018, plaintiff called the sheriff’s department.
Sergeant Oakley retrieved the report on the March 8 incident, and
told plaintiff, “You were breaking glasses on the bar, arguing with
staff and you refused to leave.” Plaintiff told Sergeant Oakley that
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none of those events took place, and arranged to obtain a copy of
the report.
On March 13, 2018, plaintiff went to the restaurant and sat
at the bar. Mr. Perez told plaintiff, “You are no longer welcome at
the restaurant.” Mr. Perez brought over the general manager,
Michael Waller, who told plaintiff that the sheriff’s department
“told me not to serve you, and to call them if you returned to the
restaurant, you have to leave.” Plaintiff went out to the parking
lot and called the sheriff’s department, and a deputy told him the
department did not (and did not have the authority to) tell the
restaurant not to serve plaintiff. Plaintiff reported the deputy’s
statement to Mr. Waller, who had stepped outside the restaurant.
Mr. Waller then stated, “you are not allowed to enter the
restaurant today; you can come back tomorrow to discuss entering
the restaurant.” They made an appointment for the following day.
Plaintiff and a friend, Cranston Howard, attended the
meeting on March 14, 2018, with Mr. Waller. Mr. Waller told
plaintiff, “[Y]ou are allowed to patronize the restaurant; however,
you are not allowed to speak to anyone outside of the bar area, and
if you do, I have instructed my staff to call the authorities to have
you removed from the restaurant.” Mr. Waller further stated that
“also, you are not allowed to speak to anyone in the restaurant
concerning their civil rights, and if you do, I have instructed my
staff to call the [authorities] to have you removed from the
restaurant.”
On February 28, 2020, plaintiff filed a complaint alleging the
facts just described, naming Red Lobster Hospitality LLC, Robert
Gagnon, and Michael Waller as defendants. (The trial court
granted a motion to quash service of summons on Mr. Gagnon and
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Mr. Waller, and that ruling is not at issue.) Plaintiff alleged four
causes of action.
In his negligence claim, plaintiff cited Mr. Gagnon’s use of
the term “boss” as a “stereotypical discriminatory racial epithet”;
Mr. Waller’s conduct that “denied [plaintiff] access to Red
Lobster[’]s restaurant, and threaten[ed] [plaintiff] with removal
from the restaurant if he spoke to anyone in the restaurant
concerning civil rights”; and the “false report to the Lakewood
Sheriff[’]s Department accusing [plaintiff] of ‘Vandalizing,’ [its]
property.”
Plaintiff’s second cause of action, for intentional infliction of
emotional distress, likewise relied on the “boss” incident; the “false
Sheriff’s report” by one of Red Lobster’s agents “which had
[plaintiff] removed from their restaurant in full public view”; the
denial of service; and the threat “that if he spoke to any patrons
about civil rights in public accommodations for African Americans
the Sheriff’s would be called on him to have him removed again
from” the restaurant.
Plaintiff’s third cause of action alleged violation of the Unruh
Civil Rights Act based on the same set of facts. Plaintiff alleged
defendant “made a distinction that incited a denial of the full and
equal accommodations, advantages, facilities, privileges and
services to [plaintiff].” Plaintiff asserted race was a substantial
motivating reason for defendant’s discriminatory conduct against
him.
Finally, plaintiff alleged “coercion in violation of the Bane
Civil Rights Act” against Red Lobster and Mr. Waller, “based on a
nonviolent threat with severe consequences.” Plaintiff alleged the
false report to the sheriff’s department accusing him of vandalism
interfered with his right to patronize the restaurant. Plaintiff
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again alleged that Mr. Waller told him “if he spoke to any African
American[]s in the restaurant about their civil rights that he has
instructed his staff to call the Sheriff’s Department to have
[plaintiff] remove[d] from the restaurant.”
2. Defendant’s Motions
Defendant filed a demurrer to the complaint and an anti-
SLAPP motion to strike the complaint, the latter supported by
declarations from Mr. Waller, Mr. Gagnon, and Steven Patch.
Defendant’s declarations painted a somewhat different picture
from that described in the complaint.
Mr. Waller stated that plaintiff “was inebriated and knocked
over the drinks of other restaurant guests” during the March 8
incident. At their meeting on March 14, he told plaintiff “that he is
welcome to drink at the restaurant, but that he cannot overdrink
and he cannot disrupt other restaurant patrons.” Mr. Waller
described and attached logbook entries of the day’s activities for
March 8 and March 13, stating that managers are required to
maintain these logs for every shift they work, inputting the
information on the same day.
Mr. Gagnon’s declaration described the occasion on which he
presented plaintiff with a drink and said, “here you go, boss.” He
stated the term “boss” is one he “regularly used in conversation
with people to help develop rapport.” Plaintiff “explained to me
that he deemed the term ‘boss’ offensive.” Mr. Gagnon also
described the March 8 incident. He stated plaintiff “had had a few
drinks and was clearly inebriated. [Plaintiff] stood up from the bar
and began approaching other tables, initiating conversations with
the other restaurant patrons. It was apparent that [plaintiff] was
making these other restaurant patrons uncomfortable. At one of
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the tables [plaintiff] approached, he knocked over a drink.” A
manager asked plaintiff to leave and he refused.
Steven Patch was the manager who asked plaintiff to leave
on March 8, and who called the police when he refused. His
declaration stated plaintiff drank four glasses of Johnnie Walker
Black, was clearly inebriated, initiated conversations with patrons
he did not know, and knocked over “multiple glasses of wine and a
bottle of wine”; one of the glasses of wine “broke onto one of the
patrons.” Mr. Patch asked plaintiff to stay at the bar and not to
bother other restaurant guests; plaintiff “became hostile and
aggressive” and told Mr. Patch he would not leave. Mr. Patch
called the police. He entered a recap of his March 8 shift into the
computer system. A copy of the log for that date is attached to his
declaration.
Defendant argued that plaintiff’s claims all arose out of
(1) allegations that Red Lobster made a false report to the sheriff’s
department, and (2) allegations that Mr. Waller told plaintiff “he
could not speak to restaurant patrons about civil rights.”
Defendant pointed out that filing a police report, even a false one,
is protected activity. The claim that Mr. Waller told plaintiff he
could not speak to other patrons about civil rights, defendant
argued, arose from Red Lobster’s “alleged desire not to have civil
rights, an issue of public interest, discussed at its open-to-the-
public restaurant.” Defendant contended it was within Red
Lobster’s “civil rights not to have certain speech associated with its
restaurant.” “Simply put, African American civil rights are an
issue of public interest and Plaintiff’s allegations arise out of
Defendants’ alleged attempts to moderate discussion of that issue
at the restaurant.” Defendant further contended plaintiff could
not establish any of his claims had minimal merit.
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Plaintiff’s opposition argued none of his claims arose from
protected activity, and he could establish a probability of success.
He included a declaration from William Drake, stating it was he
who accidentally hit and broke his glass of wine on the countertop
at the bar, and “[t]here were no issues or ill feelings on anyone’s
part.” Plaintiff also presented a declaration from a Red Lobster
bartender, Carl Winters, who was ending his shift at the time of
the March 8 incident. Mr. Winters saw Mr. Drake accidentally
knock over his glass while Mr. Drake and plaintiff were talking.
Mr. Winters helped clean up the glass, and both plaintiff and
Mr. Drake thanked him. Before he left the building, he noticed his
manager approach plaintiff and Mr. Drake, and thought the
manager “was concerned about safety and wanted to check to see
how [plaintiff] and [Mr. Drake] were doing.”
A declaration from Cranston Howard recounted the
March 14 meeting he attended with plaintiff and Mr. Waller.
Mr. Howard’s declaration stated Mr. Waller “told [plaintiff] he
could patronize the restaurant; however, he was restricted to the
bar area, and the bar area alone.” Mr. Waller told plaintiff “he
could not interact or associate with anyone outside of the bar area,
and if he did not comply he had instructed his staff to notify the
authorities. [¶] Mr. Waller, also told [plaintiff] that he was not
allowed to speak to other patrons concerning their civil rights, and
again told [plaintiff] if he did the authorities would be called.”
During the meeting, Mr. Waller’s “attitude toward [plaintiff] was
mean spirited, demeaning, and condescending.”
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3. The Trial Court’s Ruling
The court held a hearing on defendant’s anti-SLAPP motion
and on defendant’s demurrer to the complaint on October 5, 2020.
The trial court ruled that the filing of a police report, where
its veracity is in dispute, is protected activity. Consequently,
defendant met its prima facie burden to show it was engaging in
protected activity “[f]or all allegations in the complaint relating to
Defendants’ filing a ‘false report’ to the sheriff.”
The court found the other allegations did not arise from
protected activity. Thus:
Defendant was required to demonstrate the statements in
“asking plaintiff to leave and not patronize [the] restaurant” were
in connection with an issue of public interest under either
subdivision (e)(3) or (e)(4) of the anti-SLAPP statute. “The court
does not find that Defendants’ comments to one party about
whether or not they can patronize one particular restaurant (or
what areas in that restaurant) to be an issue that affects large
numbers of people beyond the direct participants,” or that it was a
newsworthy event, so the activity was not protected.
The court also rejected defendant’s claim that “not allowing
Plaintiff to discuss civil rights” was protected activity. The court
observed Red Lobster was “not being forced to hold an opinion for
which it does not agree.” Further, the conduct alleged “did not
occur in an open forum carried over public radio or even some
other public forum. Accordingly, the alleged speech did not affect a
large number of people and, thus, is not a public issue.”
Similarly, addressing plaintiff as “boss” did not affect large
numbers of people beyond the direct participants and did not
involve a topic of widespread public interest, and so was not
protected activity.
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The court further ruled that plaintiff could not establish the
minimal merit of the claims involving the police reports.
“[S]tatements Defendants allegedly made to the Lakewood sheriff
deputies fall under the litigation privilege in Civil Code § 47(b).”
Consequently, “[a]ll allegations of Plaintiff’s claims concerning and
arising from any police (more precisely, sheriff) reports are
stricken.”
The court also sustained defendant’s demurrer, finding
plaintiff failed to sufficiently allege causes of action for negligence,
intentional infliction of emotional distress, or violations of the
Unruh Civil Rights Act and the Bane Act. The court sustained the
demurrers to each cause of action with leave to amend, and
plaintiff filed his first amended complaint on October 27, 2020.
On November 24, 2020, defendant filed a notice of appeal
from the court’s order denying its special motion to strike.
DISCUSSION
We find no error in the trial court’s ruling.
1. The Law
The anti-SLAPP statute and procedures have been described
many times.
A defendant may bring a special motion to strike any cause
of action “arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue . . . .” (§ 425.16, subd. (b)(1).) Acts in furtherance of
free speech rights in connection with a public issue include, as
relevant to this appeal, “any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest,” and “any other conduct in
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furtherance of the exercise of the constitutional right of petition or
the constitutional right of free speech in connection with a public
issue or an issue of public interest.” (Id., subd. (e)(3) & (4).)
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. The moving defendant bears the
initial burden of establishing that the challenged allegations or
claims “ ‘ “aris[e] from” protected activity in which the defendant
has engaged. [Citations.] If the defendant carries its burden, the
plaintiff must then demonstrate its claims have at least “minimal
merit.” ’ [Citation.] If the plaintiff fails to meet that burden, the
court will strike the claim.” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884.)
In making these determinations, the trial court considers
“the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) “As to the second step, a plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.’ ” (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 788.)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. This Case
a. Protected activity
As relevant to this appeal, plaintiff claims to have been
injured by defendant’s conduct (1) in calling him “boss,” a term he
views as a derogatory racial epithet, and (2) in denying him service
by telling him he can patronize the restaurant only if he does not
discuss civil rights issues with other patrons of the restaurant.
(We need not consider the allegations concerning the false police
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report, as these have been stricken and plaintiff has not appealed
that ruling.)
Defendant contends that “civil rights is an issue of public
interest,” and the trial court “applied the incorrect legal standard”
in ruling otherwise. Defendant is mistaken, as the precedents we
describe post plainly show. The trial court properly concluded
defendant’s statements and conduct are not statements or activity
“in connection with a public issue or an issue of public interest”
(§ 425.16, subd. (e)(4)).
But first, we point out that defendant’s arguments have
made a simple case appear to be complicated. Defendant begins
with a convoluted argument that confuses the step one analysis of
protected activity with the merits of the claims. Defendant argues,
for example, that plaintiff’s Unruh Civil Rights Act claim does not
arise out of the “boss” statement because that statement is not a
denial of service based on discrimination. Similarly, defendant
asserts the Bane Act claim does not arise out of the “boss”
statement because speech is insufficient to establish the requisite
threat under the Bane Act. These are arguments about the merits
of plaintiff’s claims and are irrelevant in the step one analysis of
whether defendant’s statement was protected activity.
The defendant can satisfy the “arising from” requirement
only by “ ‘demonstrat[ing] that the defendant’s conduct by which
plaintiff claims to have been injured falls within one of the four
categories described in subdivision (e) . . . .’ ” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1063.) Here, the injury-producing conduct plaintiff has alleged
includes the “boss” statement and the “no discussion of civil rights”
statement. The only question at step one is whether those
statements are protected First Amendment activity under the anti-
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SLAPP statute. The statements are not protected activity unless
they were made in connection with an issue of public interest.
They were not.
“[B]oth the third and fourth categories of conduct that fall
within section 425.16[, subdivision (e)] are subject to the limitation
that the conduct must be in connection with an issue of public
interest. The Legislature intended this requirement to have a
limiting effect on the types of conduct that come within the third
and fourth categories of the statute.” (Weinberg v. Feisel (2003)
110 Cal.App.4th 1122, 1132.)
The point is summarized in Workman v. Colichman (2019)
33 Cal.App.5th 1039 (Workman). “To fall under
section 425.16(e)(4), ‘the conduct must be in connection with an
issue of public interest.’ [Citation.] ‘[A] matter of public interest
should be something of concern to a substantial number of people,’
and ‘the assertion of a broad and amorphous public interest is not
sufficient.’ [Citation.] ‘In evaluating the first prong of the anti-
SLAPP statute, we must focus on “the specific nature of the speech
rather than the generalities that might be abstracted from it.” ’
[Citations.] To be considered an issue of public interest, the
communication must ‘go beyond the parochial particulars of the
given parties.’ ” (Id. at p. 1048.)
The Supreme Court makes the same point in FilmOn.com
Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn). “[A]
statement is made ‘in connection with’ a public issue when it
contributes to—that is, ‘participat[es]’ in or furthers—some public
conversation on the issue.” (Id. at p. 151.) “[W]e agree . . . that ‘it
is not enough that the statement refer to a subject of widespread
public interest; the statement must in some manner itself
contribute to the public debate.’ ” (Id. at p. 150.) “ ‘[T]he fact that
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“a broad and amorphous public interest” can be connected to a
specific dispute’ ” is not enough. (Ibid.)
None of these criteria is met, either by the “boss” statement
or by defendant’s conduct allegedly telling plaintiff that he cannot
discuss civil rights issues with patrons at the restaurant, and will
be removed if he does. The fact that “civil rights” is the topic
plaintiff cannot discuss in the restaurant does not transform
defendant’s conduct into conduct “in connection with a public issue
or an issue of public interest.” (§ 425.16, subd. (e)(4).)
Defendant’s statements are not matters of “widespread
public interest” and neither further nor involve participation in
any public discourse on an issue of civil rights. The
communication occurred in a meeting among plaintiff,
Mr. Howard, and Mr. Waller, not in a public forum, and it did not
“ ‘go beyond the parochial particulars of the given parties.’ ”
(Workman, supra, 33 Cal.App.5th at p. 1048.)
Red Lobster makes another convoluted argument that it has
a First Amendment right “to refrain from speaking at all,” and
“has the constitutional right not to become the ‘go-to’ place to
discuss civil rights in the community,” and “has the right to be
associated with its food rather than the potentially controversial
topics of conversation of its patrons.” These rather odd assertions
do not explain why defendant’s statement to plaintiff that he may
not discuss civil rights in its restaurant is a matter of public
interest.
In sum, when defendant directly addresses the public
interest issue, it merely states that “civil rights” is an issue of
public interest. This is a classic example of a litigant attempting
to connect “ ‘ “a broad and amorphous public interest” ’ ” to a
specific dispute, but, as FilmOn instructs, such a connection “is not
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enough.” (FilmOn, supra, 7 Cal.5th at p. 150.) Here, none of the
considerations identified in FilmOn as constituting a matter of
public interest exists. Neither party is in the public eye, the
subject matter does not affect large numbers of people beyond the
direct participants, and the activity did not occur in the context of
an ongoing public controversy, dispute or discussion. (See id. at
p. 145.)
The only legal authorities defendant cites are FilmOn and
Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534,
1546, for the general proposition that section 425.16,
subdivision (e)(4) applies to private speech and the communication
need not be in a public forum. That is correct, but the private
communications must concern “issues of public interest.” (Terry,
at p. 1546; id. at p. 1547 [“ ‘the assertion of a broad and amorphous
public interest is not sufficient’ ”].) That is all we have here, and
consequently defendant has not demonstrated it engaged in
activity protected by the anti-SLAPP statute. Accordingly,
plaintiff was not required to demonstrate a probability of
prevailing on his claims.
b. Defendant’s alternative contention
Defendant contends that if we conclude, as we do, that
plaintiff’s claims do not arise out of defendant’s protected activity,
we should “exercise [our] discretion to review the trial court’s grant
of leave to amend following its sustaining of Red Lobster’s
demurrer to all four of Plaintiff’s causes of action.” Defendant says
this would “avoid unnecessary delay and waste of resources,” and
that we have discretion “to treat a purported appeal from a non-
appealable order as a petition for writ of mandate.” But there has
been no “purported appeal from a non-appealable order”; the only
appeal before us is from the court’s anti-SLAPP ruling. We are
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aware of no authority allowing us to review a trial court’s ruling
sustaining a demurrer to an original complaint with leave to
amend. The requirements for writ relief are not met here. Any
“unnecessary delay” is a result of defendant’s choice to file an anti-
SLAPP motion that, predictably, was only partially successful.
DISPOSITION
The order is affirmed. Plaintiff shall recover his costs on
appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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