Singh et al v. Lowe's Home Centers, LLC

Filing 24

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 7/24/18 ORDERING that Defendant's Motion to Dismiss 18 be, and the same here is, GRANTED as to the first, second, third, and sixth causes of action. The fourth and fifth causes of action for negligence and vicarious liability remain. Plaintiffs have twenty days from the date this Order is signed to file a Third Amended Complaint, if they can do so consistent with this Order. Plaintiffs' Motion for Leave to File a Third Amended Complaint 23 is therefore moot. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL SINGH and ANDREA SINGH,

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Plaintiffs,

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CIV. NO. 2:18-445 WBS AC

v.
LOWE’S HOME CENTERS, LLC, and
DOES 1-50, inclusive

MEMORANDUM AND ORDER RE: MOTION
TO DISMISS AND MOTION TO FILE
THIRD AMENDED COMPLAINT

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Defendants.
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Plaintiffs Paul Singh and Andrea Singh initiated this
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action against defendants Lowe’s Home Centers, LLC (“Lowe’s) and
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Does 1 through 50, bringing claims for assault, battery,
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intentional infliction of emotional distress, negligence,
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vicarious liability, and negligent supervision, instruction, and
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training.

(Second Amended Compl. (“SAC”) (Docket No. 17).)

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Presently before the court is defendant Lowe’s’ Motion to Dismiss
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plaintiffs’ Second Amended Complaint for failure to state a claim
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upon which relief can be granted, pursuant to Federal Rule of
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Civil Procedure 12(b)(6).

(Docket No. 18).

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I.

Factual and Procedural Background

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According to the allegations of the SAC, on September
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24, 2015, plaintiffs went to Lowe’s and purchased 6 bags of

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concrete mix weighing 60 pounds each.

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Andrea asked an employee (“Employee”) to load the bags into

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plaintiffs’ car.

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bags, plaintiff Paul, who was sitting in the driver’s seat, heard

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Employee complain about the weight, and he suggested that

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Employee seek assistance.

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continued to load the bags in such a way as to cause the bags to

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burst and spew concrete dust all over the inside of plaintiffs’

(Id. ¶ 2.)

(SAC ¶ 1.)

Plaintiff

When Employee began loading the

(Id. ¶ 4.)

Employee refused, and

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vehicle, as well as on Paul.

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bags were breaking as Employee threw them into the vehicle.

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(Id.)

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the passenger window of plaintiffs’ car, smiled, gave a thumbs

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up, and walked away from the vehicle.

(Id.)

Andrea also noticed that the

When Employee had finished loading the bags, she tapped on

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(Id. ¶ 5.)

At this point, plaintiff Paul became very upset and

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plaintiffs drove home.

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Lowe’s store manager to complain.

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Paul called the Lowe’s corporate office to reassert his

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complaint.

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them twenty bags of concrete mix for $0.10 a bag, but plaintiffs

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refused the offer.

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(Id. ¶ 6.)

Once home, Paul called the
(Id. ¶ 7.)

The following day,

Lowe’s attempted to compensate plaintiffs by offering

(Id.)

Shortly after the event, plaintiffs began sneezing and

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coughing.

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health care provider complaining of chest pain, shortness of

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breath, cramping in his chest and left arm, and continued

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coughing and sneezing.

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visited her health care provider as well, complaining of

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wheezing.

(Id. ¶ 9.)

(Id.)

On October 7, 2015, Paul visited his

(Id.)

On October 23, 2015, Andrea

Plaintiffs have continued to seek medical
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treatment since the event.

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(Id. ¶ 10.)

Additionally, plaintiffs’ car has been “deemed unsafe”

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and totaled by their insurance carrier.

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1, 2015, Jen Holt, the Detail Manager at Larry Geweke Ford,

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informed plaintiffs that because of “the exposure of asbestos and

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cement which is now throughout the vehicle, including the

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headliner and the vent system, it is a health hazard for” her

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employees to provide services on the vehicle.

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Because the vehicle was seemingly not repairable, it had to be

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totaled along with everything in it.

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(Id. ¶ 8.)

On October

(Id. ¶ 12.)

(Id. ¶ 12.)

On March 5, 2018, Lowe’s filed a Motion to Dismiss.

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(Docket No. 4).

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filed a Motion for Leave to File a Second Amended Complaint

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(Docket No. 9) as well as a Motion to Remand (Docket No. 7).

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May 10, 2018, the court denied the Motion to Remand, granted the

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Motion for Leave, and denied as moot the Motion to Dismiss.

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(Docket No. 16.)

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Amended Complaint within ten days.

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their Second Amended Complaint on May 16, 2018.

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II.

Two weeks later, on March 21, 2018, plaintiffs

On

The court ordered plaintiffs to file a Second
Plaintiffs complied and filed
(Docket No. 17.)

Legal Standard

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On a Rule 12(b)(6) motion, the inquiry before the court

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is whether, accepting the allegations in the complaint as true

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and drawing all reasonable inferences in the plaintiff’s favor,

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the plaintiff has stated a claim to relief that is plausible on

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its face.

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plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Id.

“The

“A claim has facial plausibility
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when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.”

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pleaded complaint may proceed even if it strikes a savvy judge

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that actual proof of those facts is improbable.”

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v. Twombly, 550 U.S. 544, 556 (2007).

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III. Discussion

Id.

Under this standard, “a well-

Bell Atl. Corp.

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A.

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The elements necessary to plead a cause of action for

Assault and Battery

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assault are: (1) defendant acted with intent to cause harmful or

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offensive contact, or threatened to touch plaintiff in a harmful

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or offensive manner; (2) plaintiff reasonably believed he/she was

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about to be touched in a harmful or offensive manner or it

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reasonably appeared to plaintiff that defendant was about to

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carry out the threat; (3) plaintiff did not consent to

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defendant’s conduct; (4) plaintiff was harmed; and (5)

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defendant’s conduct was a substantial factor in causing

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plaintiff’s harm.

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Dist. 2013).

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So v. Shin, 212 Cal. App. 4th 652, 668-69 (2nd

Here, plaintiffs have failed to plead any facts

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indicating that they were in fear of an imminent harmful contact

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or touching.

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that they had no fear, or even knowledge, of an imminent contact

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or touching.

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continued contact with the cement dust while Employee was loading

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the bags, and in fact plaintiffs continued to drive home without

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removing the cement bags.

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Employee intended to cause any type of harm or that she was even

Instead, they seem to allege facts demonstrating

Neither plaintiff exited the car for fear of

Moreover, there is no indication that

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aware that she was potentially causing harm.

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SAC fails to state a claim for assault.

Accordingly, the

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The essential elements of a cause of action for battery

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are similar: (1) defendant touched plaintiff, or caused plaintiff

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to be touched, with the intent to harm or offend plaintiff; (2)

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plaintiff did not consent to the touching; (3) plaintiff was

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harmed or offended by defendant’s conduct; and (4) a reasonable

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person in plaintiff’s position would have been offended by the

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touching.

Here, there is no allegation of a touching of

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plaintiffs’ persons, much less than one that was harmful or

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offensive.

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touching, there is no allegation that it was intentional.

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Accordingly, the SAC also fails to state a claim for battery.

And even if the spewing of the dust could be deemed a

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B.

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The elements necessary to plead a cause of action for

Intentional Infliction of Emotional Distress

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intentional infliction of emotional distress are: (1) extreme and

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outrageous conduct by the defendant with the intention of

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causing, or reckless disregard of the probability of causing,

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emotional distress; (2) the plaintiff’s suffering severe or

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extreme emotional distress; and (3) actual and proximate

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causation of the emotional distress by defendant’s outrageous

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conduct.

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(1991).

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is so extreme as to exceed all bounds of that usually tolerated

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in a civilized community.

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‘intended to inflict injury or engaged in with the realization

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that injury will result.’”

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1050-51 (2009).

Christensen v. Superior Court, 54 Cal. 3d 868, 903
A defendant’s conduct is considered outrageous “when it

The defendant’s conduct must be

Hughes v. Pair, 46 Cal. 4th 1035,

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Here, even when the court accepts plaintiffs’

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allegations as true, defendant did not engage in any conduct that

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could be considered so extreme as to exceed all bounds of conduct

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tolerated in a civilized community.

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to state a claim of intentional inflection of emotional distress,

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and this claim must be dismissed.

Accordingly, plaintiffs fail

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C.

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The elements necessary to plead a negligence cause of

Negligence

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action are: (1) a legal duty to use due care; (2) a breach of

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that legal duty; and (3) the breach is the proximate or legal

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cause of the resulting injury.

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Cal. 4th 913, 917 (1996).

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duty and breach are sufficient.

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whether the alleged actions were the cause of the resulting

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injury.

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sufficient to support the element of causation, and therefore the

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court will deny defendant’s Motion to Dismiss the negligence

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claim.

Ladd v. County of San Mateo, 12

The allegations of the SAC regarding
The dispute appears to be solely

The court concludes that the facts alleged are

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D.

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“[A]n employer may be held vicariously liable for torts

Vicarious Liability

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committed by an employee within the scope of employment.”

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M. v. City of Los Angeles, 54 Cal. 3d 202, 208, 814 P.2d 1341,

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1343 (1991).

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of her employment as she loaded the concrete mix bags into

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plaintiffs’ vehicle.

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allegations are sufficient to state a cause of action for

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negligence against Employee, it further concludes that the

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Complaint is sufficient to hold Lowe’s vicariously liable for

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Here, Employee was clearly acting within the scope

Because the court has determined that the

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Employee’s negligence in loading the concrete bags.

Accordingly,

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the court will deny defendant’s Motion to Dismiss plaintiffs’
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vicarious liability claim.
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E.

Negligent Supervision, Instruction, and Training

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“An employer may be liable to a third person for the
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employer’s negligence in hiring or retaining an employee who is
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incompetent or unfit.”

Phillips v. TLC Plumbing, Inc., 172 Cal.

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App. 4th 1133, 1139 (4th Dist. 2009), citing Roman Catholic
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Bishop v. Superior Court 42 Cal. App. 4th 1556, 1564–1565 (4th
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Dist. 1996).

“Negligence liability will be imposed on an

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employer if it knew or should have known that hiring the employee
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created a particular risk or hazard and that particular harm
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materializes.”

Id.

“To establish negligent supervision, a

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plaintiff must show that a person in a supervisorial position
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over the actor had prior knowledge of the actor’s propensity to
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do the bad act.”

Z.V. v. County of Riverside, 238 Cal. App. 4th

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889, 902 (4th Dist. 2015).
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Plaintiffs have failed to plead any facts suggesting
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that a Lowe’s employee was somehow unfit or incompetent, or that
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Lowe’s knew or should have been aware of any such incompetence or
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propensity to act in a certain way.

Instead, plaintiffs simply

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state that Lowe’s owed them a duty of care to properly supervise,
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instruct, and train Employee.

(SAC ¶ 60.)

This bare allegation

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is insufficient to state a cause of action for negligent
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supervision, instruction, or training, and thus this claim must
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be dismissed.
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IT IS THEREFORE ORDERED that defendant’s Motion to

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Dismiss (Docket No. 18) be, and the same here is, GRANTED as to

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the first, second, third, and sixth causes of action.

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and fifth causes of action for negligence and vicarious liability

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remain.

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signed to file a Third Amended Complaint, if they can do so

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consistent with this Order.

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The fourth

Plaintiffs have twenty days from the date this Order is

Plaintiffs’ Motion for Leave to File a Third Amended
Complaint (Docket No. 23) is therefore moot.
Dated:

July 24, 2018

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