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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 BRIAN THOMPSON, an individual and NASRIN BAHERI, an individual, 12 Plaintiffs, 13 14 15 16 17 18 19 20 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. / 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 21 Plaintiffs Brian Thompson and Nasrin Baheri seek damages from Macy’s under several 22 claims for relief arising out of an alleged bed bug incident. Plaintiffs allege Macy’s was aware 23 of and failed to provide notice of a bed bug infestation contained within the furniture sold to 24 them at Macy’s flagship store in San Francisco. Plaintiffs contend that the night after the 25 mattress was delivered to their home, they began to suffer physical symptoms of bed bug 26 infestation. After the manifestation of physical symptoms, plaintiffs state that they contacted a 27 pest control company that confirmed that they indeed had a bed bug infestation. Plaintiffs allege 28 that they have suffered financial, physical and emotional harm resulting from the infestation and 1 that defendant’s failure to address the infestation, despite plaintiffs’ complaints, has exacerbated 2 the harm suffered. Macy’s now moves to dismiss several of plaintiffs’ claims. 3 4 ANALYSIS 1. PLAINTIFF NASRIN BAHERI LACKS STANDING TO ASSERT CLAIMS ONE AND FOUR. 5 Macy’s contends and plaintiffs concede that claim one for breach of implied warranty 6 of merchantability and claim four for breach of contract as to plaintiff Nasrin Baheri must be 7 dismissed because she lacks standing to sue under those theories of liability. This order agrees. 8 Accordingly, Macy’s motion to dismiss claims one and four, only in regards to plaintiff Nasrin 9 Baheri is GRANTED. 10 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. 11 12 theory of premises liability. Macy’s contends plaintiffs cannot state a claim under this theory of 13 liability because plaintiffs were not injured on Macy’s premises. This order agrees. 14 A store owner owes a duty to exercise reasonable care in keeping the premises safe for 15 his invitees. Ortega v. Kmart Corp., 26 Cal.4th 1200, 1203 (2001). Plaintiffs do not allege they 16 were harmed while on the premises of Macy’s. Rather they allege they were harmed when a 17 mattress infested with bed bugs was delivered to their home. The theory of premises liability 18 is based on the duty that arises out of the “special relationship” that exists between business 19 proprietors and their invitees. This duty may include “a duty to take affirmative measures, either 20 to prevent foreseeable harm from occurring to those using the premises, or to come to the aid of 21 a patron or invitee in the face of ongoing or imminent harm or danger.” Rotolo v. San Jose 22 Sports and Entertain., 151 Cal. App. 4th 307, 326, (2007). The duty of a store owner under this 23 theory of liability cannot be extended to harm incurred outside of the premises because by then 24 the victim is no longer an invitee. Accordingly, claim two is dismissed. 25 3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 26 The motion contends that the complaint fails to plead sufficient facts to state a claim 27 for relief for intentional infliction of emotional distress. In order to state a claim for intentional 28 infliction of emotional distress, a plaintiff must allege: (1) outrageous conduct, so extreme as to 2 1 exceed all bounds of that usually tolerated in a civilized community, (2) an intent to cause 2 or a reckless disregard of the possibility of causing emotional distress, (3) severe or extreme 3 emotional distress, and (4) that the outrageous conduct proximately caused the emotional 4 distress. Symonds v. Mercury Savings & Loan Assn., 225 Cal. App. 3d 1458, 1468 (1990). 5 Plaintiffs allege that Macy’s had knowledge of a bed bug infestation before selling the 6 mattress to plaintiffs, Macy’s failed to put plaintiffs on notice of the infestation and instead 7 knowingly sold plaintiffs an infested mattress and then failed to address plaintiffs’ concerns 8 regarding the bed bug infestation (Compl. ¶¶ 52, 55). Plaintiffs argue that as a result of this 9 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 11 For the Northern District of California United States District Court 10 should have known its conduct would result in emotional distress and Macy’s acted with reckless 12 disregard of the emotional consequences of their action (Compl. ¶¶ 99–100). These allegations 13 could, when recited to an average member of the community, arouse his or her resentment 14 against Macy’s and lead him or her to find the conduct was outrageous. McMahon v. Craig, 15 176 Cal. App. 4th 1502, 1515–16 (2009). 16 17 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. 18 3. 19 Macy’s contends the prayer for punitive damages must be dismissed as inadequately 20 21 PUNITIVE DAMAGES. plead. This order disagrees. Claim three for intentional infliction of emotional distress gives rise to a claim for 22 punitive damages. Plaintiffs, as discussed above, have plead sufficient facts to sustain claim 23 three. As a result, plaintiffs have also plead sufficient facts to sustain their prayer for punitive 24 damages. 25 Macy’s contends that plaintiffs have not met the pleading requirements set forth in 26 California Civil Code Section 3294(b) for punitive damages against a corporate employer. 27 In federal court, while Section 3294 governs the substantive standard to obtain punitive 28 damages, the Federal Rules of Civil Procedure governs the pleading standard. A plaintiff’s short 3 1 and plain prayer for punitive damages that is supported by plausible allegations is therefore 2 sufficient to survive a motion to dismiss. Accordingly, Macy’s motion to dismiss plaintiffs’ 3 prayer for punitive damages is DENIED. 4 CONCLUSION 5 For the reasons stated above, Macy’s motion to dismiss claim two in its entirety and 6 claims one and four, as to plaintiff Nashrin Bahari only, is GRANTED WITHOUT LEAVE TO 7 AMEND. 8 three and plaintiffs’ prayer for punitive damages is DENIED. Any additional attempted amendment being futile. Macy’s motion to dismiss claim 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: October 5, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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