Thompson et al v. Macy's, Inc.

Filing 32

ORDER GRANTING IN PART AND DENYING IN PART MACY'S MOTION TO DISMISS by Judge William Alsup [granting in part and denying in part 6 Motion to Dismiss; granting in part and denying in part 24 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 10/5/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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BRIAN THOMPSON, an individual and
NASRIN BAHERI, an individual,

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Plaintiffs,

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No. C 12-02294 WHA
v.
MACY’S WEST STORES, INC., a Delaware
corporation; and DOES 1–20, inclusive,

ORDER GRANTING IN PART
AND DENYING IN PART
MACY’S MOTION TO DISMISS

Defendants.
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INTRODUCTION
In this tort action, Macy’s West Stores, Inc., seeks to dismiss various claims. For the
following reasons, the motion is GRANTED IN PART AND DENIED IN PART.
STATEMENT

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Plaintiffs Brian Thompson and Nasrin Baheri seek damages from Macy’s under several

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claims for relief arising out of an alleged bed bug incident. Plaintiffs allege Macy’s was aware

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of and failed to provide notice of a bed bug infestation contained within the furniture sold to

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them at Macy’s flagship store in San Francisco. Plaintiffs contend that the night after the

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mattress was delivered to their home, they began to suffer physical symptoms of bed bug

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infestation. After the manifestation of physical symptoms, plaintiffs state that they contacted a

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pest control company that confirmed that they indeed had a bed bug infestation. Plaintiffs allege

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that they have suffered financial, physical and emotional harm resulting from the infestation and

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that defendant’s failure to address the infestation, despite plaintiffs’ complaints, has exacerbated

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the harm suffered. Macy’s now moves to dismiss several of plaintiffs’ claims.

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ANALYSIS
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PLAINTIFF NASRIN BAHERI LACKS STANDING
TO ASSERT CLAIMS ONE AND FOUR.

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Macy’s contends and plaintiffs concede that claim one for breach of implied warranty
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of merchantability and claim four for breach of contract as to plaintiff Nasrin Baheri must be
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dismissed because she lacks standing to sue under those theories of liability. This order agrees.
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Accordingly, Macy’s motion to dismiss claims one and four, only in regards to plaintiff Nasrin
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Baheri is GRANTED.
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PREMISES LIABILITY.

Plaintiffs allege in claim two that Macy’s has breached a duty under the negligence
For the Northern District of California

United States District Court

2.
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theory of premises liability. Macy’s contends plaintiffs cannot state a claim under this theory of
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liability because plaintiffs were not injured on Macy’s premises. This order agrees.
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A store owner owes a duty to exercise reasonable care in keeping the premises safe for
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his invitees. Ortega v. Kmart Corp., 26 Cal.4th 1200, 1203 (2001). Plaintiffs do not allege they
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were harmed while on the premises of Macy’s. Rather they allege they were harmed when a
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mattress infested with bed bugs was delivered to their home. The theory of premises liability
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is based on the duty that arises out of the “special relationship” that exists between business
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proprietors and their invitees. This duty may include “a duty to take affirmative measures, either
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to prevent foreseeable harm from occurring to those using the premises, or to come to the aid of
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a patron or invitee in the face of ongoing or imminent harm or danger.” Rotolo v. San Jose
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Sports and Entertain., 151 Cal. App. 4th 307, 326, (2007). The duty of a store owner under this
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theory of liability cannot be extended to harm incurred outside of the premises because by then
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the victim is no longer an invitee. Accordingly, claim two is dismissed.
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3.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

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The motion contends that the complaint fails to plead sufficient facts to state a claim
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for relief for intentional infliction of emotional distress. In order to state a claim for intentional
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infliction of emotional distress, a plaintiff must allege: (1) outrageous conduct, so extreme as to
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exceed all bounds of that usually tolerated in a civilized community, (2) an intent to cause

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or a reckless disregard of the possibility of causing emotional distress, (3) severe or extreme

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emotional distress, and (4) that the outrageous conduct proximately caused the emotional

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distress. Symonds v. Mercury Savings & Loan Assn., 225 Cal. App. 3d 1458, 1468 (1990).

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Plaintiffs allege that Macy’s had knowledge of a bed bug infestation before selling the

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mattress to plaintiffs, Macy’s failed to put plaintiffs on notice of the infestation and instead

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knowingly sold plaintiffs an infested mattress and then failed to address plaintiffs’ concerns

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regarding the bed bug infestation (Compl. ¶¶ 52, 55). Plaintiffs argue that as a result of this

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conduct they suffered emotional and mental distress (Compl. ¶ 101). Furthermore, plaintiffs
include allegations that Macy’s intended to cause emotional distress, Macy’s knew or reasonably

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For the Northern District of California

United States District Court

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should have known its conduct would result in emotional distress and Macy’s acted with reckless

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disregard of the emotional consequences of their action (Compl. ¶¶ 99–100). These allegations

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could, when recited to an average member of the community, arouse his or her resentment

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against Macy’s and lead him or her to find the conduct was outrageous. McMahon v. Craig,

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176 Cal. App. 4th 1502, 1515–16 (2009).

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Because plaintiffs have alleged facts sufficient to state a claim for intentional infliction
of emotional distress, Macy’s motion to dismiss plaintiffs’ third claim for relief is DENIED.

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3.

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Macy’s contends the prayer for punitive damages must be dismissed as inadequately

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PUNITIVE DAMAGES.

plead. This order disagrees.
Claim three for intentional infliction of emotional distress gives rise to a claim for

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punitive damages. Plaintiffs, as discussed above, have plead sufficient facts to sustain claim

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three. As a result, plaintiffs have also plead sufficient facts to sustain their prayer for punitive

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damages.

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Macy’s contends that plaintiffs have not met the pleading requirements set forth in

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California Civil Code Section 3294(b) for punitive damages against a corporate employer.

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In federal court, while Section 3294 governs the substantive standard to obtain punitive

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damages, the Federal Rules of Civil Procedure governs the pleading standard. A plaintiff’s short
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and plain prayer for punitive damages that is supported by plausible allegations is therefore

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sufficient to survive a motion to dismiss. Accordingly, Macy’s motion to dismiss plaintiffs’

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prayer for punitive damages is DENIED.

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CONCLUSION

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For the reasons stated above, Macy’s motion to dismiss claim two in its entirety and

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claims one and four, as to plaintiff Nashrin Bahari only, is GRANTED WITHOUT LEAVE TO

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AMEND.

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three and plaintiffs’ prayer for punitive damages is DENIED.

Any additional attempted amendment being futile. Macy’s motion to dismiss claim

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: October 5, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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