Webb v. Olive Garden Italian Restaurants/Darden Restaurants et al

Filing 66

ORDER GRANTING DEFENDANT OLIVE GARDEN ITALIAN RESTAURANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Judge Patricia V. Trumbull granting 43 Motion to Dismiss; finding as moot 65 Motion for Telephonic Appearance. (pvtlc2, COURT STAFF) (Filed on 9/2/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The holding of this court is limited to the facts and the particular circumstances underlying the present motion. ORDER, page 1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DAVID WEBB,

) ) Plaintiff, ) ) v. ) ) OLIVE GARDEN ITALIAN ) RESTAURANTS, ET AL., ) ) Defendants. ) __________________________________ )

Case No. C 08-04913 PVT ORDER GRANTING DEFENDANT OLIVE GARDEN ITALIAN RESTAURANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND [Docket No. 43]

INTRODUCTION Defendant Olive Garden Italian Restaurant/Darden Restaurants moves to dismiss the second amended complaint. ("Olive Garden"). Plaintiff David Webb proceeding pro se opposes the motion. Pursuant to Civ. L.R. 7-1(b), the motion was taken under submission. Having reviewed the papers and considered the arguments of counsel and plaintiff, defendant Olive Garden's motion to dismiss the second amended complaint is dismissed with leave to amend.1

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BACKGROUND On July 2, 2008, plaintiff Webb dined with two female companions at the Olive Garden Restaurant located in Palo Alto, CA. During the course of the meal, he alleges that he befriended an on-duty floor supervisor named Emili. Plaintiff Webb later escorted his two female companions to their respective cars and returned to the restaurant to speak further with Emili. Based on their conversation which lasted approximately 10 minutes, plaintiff Webb believed that Emili was receptive to his romantic overtures and that he could return to speak with her again. Specifically, plaintiff Webb alleges that: "Emili sincerely told me that she had a boyfriend but that we could continue communicating and for the immediate future, I could come by the restaurant to see and talk with her from time to time. I left with the clear understanding that we would engage in mutual conversation until Emili felt more comfortable to exchange contact information." On July 3, 2008, plaintiff Webb returned to the restaurant in an effort to resume contact with Emili. However, the restaurant was temporarily closed because the sewage system was not working properly and at least eight patrons were milling outside in the parking lot. In the parking lot, plaintiff Webb informed a young male restaurant employee that he wanted to extend an invitation to Emili. The young male restaurant employee went inside the restaurant and plaintiff Webb waited outside for her. Instead of meeting with Emili however, a restaurant sales manager named Jacob Palpallatoc approached plaintiff Webb with a repeated pushing motion of his hands. Mr. Palpallotoc stated to plaintiff Webb that he was not welcome at the restaurant because of his efforts "to solicit the intimate affections of Emili." Plaintiff Webb alleges that Mr. Palpallotoc had a "menacing look in his eyes" and stood in a "combative posture." In response to Mr. Palpallotoc's statements, plaintiff Webb identified himself and again stated that he merely wanted to invite Emili to a professional event. Mr. Palpallotoc stated that Emili wanted nothing from plaintiff Webb and that she had told him "a lot of shit of how you are interested in fucking her" and he was not going to let that happen. Plaintiff Webb objected to the public statements made by Mr. Palpallatoc as the restaurant patrons watched. He felt that the restaurant patrons viewed him as a troublemaker, or worse, a criminal. Indeed, several of the restaurant patrons ORDER, page 2

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scurried to their cars and others backed away from him. Mr. Palpallotoc continued to approach plaintiff Webb and came within two feet of his comfort zone, which caused him to take two steps backwards. At that point, another person that plaintiff Webb describes as a large pacific islander, and bearing a badge, emerged from the restaurant. That person approached Mr. Palpallotoc and plaintiff Webb and pounded his closed fist into his other open hand. Mr. Palpallotoc informed plaintiff Webb that that person was his back up. Plaintiff Webb objected to the treatment by both Mr. Palpallatoc and the person plaintiff Webb describes as a large pacific islander. Plaintiff Webb alleges that the person he describes as a large pacific islander continued his threatening and ominous behavior throughout the course of his ten minute conversation with Mr. Palpallotoc. Plaintiff Webb then noticed a woman with "stern eyes" observing the

exchange between himself, Mr, Palpallotoc and the large pacific islander. Plaintiff Webb asked Mr. Palpallatoc and the large pacific islander each to provide him with their business cards. Only Mr. Palpallotoc acceded to the request. The large pacific islander remained in close proximity to where plaintiff Webb stood and began to approach him in "quick step." Plaintiff Webb asked Mr. Palpallotoc to stop his colleague from continuing his threatening behavior. Thereafter, the same woman standing nearby instructed both Mr. Palpallotoc and the large pacific islander to go inside the restaurant. She stated, " . . . [I am the] General Manager of the restaurant and knew I had to step in at that moment before things got anymore out of hand because I am responsible for their actions . . . ." The woman identified herself to plaintiff Webb as Lisa Chorello. Defendant Chorello told plaintiff Webb that she would talk to Mr. Palpallotoc and the large pacific islander about their behavior. Plaintiff Webb informed her that he would write the owners of the restaurant about the incident. She then provided her name to plaintiff Webb by writing it on the back of Mr. Palpallotoc's business card. Pursuant to the order granting defendant Olive Garden's motion to dismiss with leave to amend dated March 19, 2009, plaintiff Webb filed a second amended complaint alleging claims of assault, defamation, intentional infliction of emotional distress and negligent supervision. ("March 19, 2009 Order"). Plaintiff Webb alleges jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332. He seeks damages in excess of $1 million. ORDER, page 3

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LEGAL STANDARD A complaint may be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The dismissal may be based on either the lack of a cognizable legal theory or the absence of sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) and Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-534 (9th Cir. 1984). For purposes of evaluating a motion to dismiss, the allegations in a complaint are taken as true and construed in the light most favorable to the nonmoving party. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). "A complaint should not be dismissed unless a plaintiff could prove no set of facts in support of his claim that would entitle him to relief." Id. Generally, a motion to dismiss for failure to state a claim is viewed with disfavor and rarely granted. Gilligan v. Jamco Develop. Corp., 108 F.3d 246, 249 (9th Cir. 1997). However, mere conclusions couched in factual allegations are not sufficient to state a cause of action. Papasan v. Allain, 478 U.S. 265, 286 (1986). See also, McGlinchy v. Shell Chem Co., 845 F.2d 802, 810 (9th Cir, 1988). The complaint must aver "[f]actual allegations [] enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 500 U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1957)). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." John D. Ashcroft, et al. v. Javaid Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1941, 173 L.Ed.2d 868 (2009). "[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Id. "[L]eave [to amend] shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Additionally, a federal court may liberally construe the "inartful pleading" of parties appearing pro se. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980). DISCUSSION In the second amended complaint, plaintiff Webb alleges the following claims: (1) assault; (2) defamation; (3) intentional infliction of emotional distress; and (4) negligent ORDER, page 4

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supervision. Defendant Olive Garden moves to dismiss all of the claims alleged in the second amended complaint and further moves to strike the prayer for punitive damages. Each of these alleged claims are considered in turn. I. Assault "Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present." Lowery v. Standard Oil Co. of California, 63 Cal. App. 2d 1, 6-7 (1944). See also, Medora v. City & County of San Francisco, 2007 WL 2522319 *5 (N.D. Cal.)); and De La Cerra Frances v. De Anda, 224 Fed. Appx. 637, 639 (9th Cir. 2007). The tort of assault is complete when the anticipation of harm occurs. Kiseskey v. Carpenters' Trust for Southern California, 144 Cal. App. 3d 222, 232 (1983). "A civil action for assault is based on an invasion of the right of a person to live without being put in fear of personal harm." Lowery v. Standard Oil Co. of California, 63 Cal. App. 2d at 7. Here, plaintiff Webb alleges that Mr. Palpallotoc approached him with a pushing motion of his hands and came within two feet of his comfort zone which caused plaintiff to take two steps backwards in an effort to avoid any contact with him. Plaintiff Webb alleges that he took two steps backwards because Mr. Palpallotoc came within two feet of his comfort zone. He further alleges that Mr. Palpallotoc had a "menacing look in his eyes" and stood in a combative stance. He does not allege that he anticipated harm or that he was in fear of immediate injury. Indeed, moments thereafter, plaintiff Webb requests that Mr. Palpallotoc provide him with his business card. The act of using a pushing motion with hands as alleged, in and of itself, fails to demonstrate an intent by Mr. Palpallotoc to inflict immediate injury. Plaintiff Webb also alleges that the person he describes as a large pacific islander committed an assault against him. Specifically, he alleges that the large pacific islander approached him and repeatedly pounded his clenched fist into an open hand as he approached him and stood nearby during his conversation with Mr. Palpallotoc. Again, the facts as alleged, in and of itself, do not demonstrate an intent by the large pacific islander to inflict immediate injury. Accordingly, both assault claims are dismissed with leave to amend.

ORDER, page 5

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II.

Defamation A claim of defamation requires the following elements: (1) publication that is; (2) false;

(3) defamatory: (4) unprivileged; and that (5) has a natural tendency to injure or that causes special damage. Taus v. Loftus, 40 Cal. 4th 683, 720 (2007). "A communication is defamatory if it `tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" Greenfield v. America West Airlines, Inc., et al., 2004 WL 2600135 *5 (N.D. Cal.)(internal citations omitted). "Under principles of respondeat superior, an employee may be held liable for a defamatory statement made by its employee." Id. In the second amended complaint, plaintiff Webb alleges that the following statements were made to him in the Olive Garden parking lot when at least eight restaurant patrons watched nearby: (1) you are not welcome here for any reason due to your efforts to solicit the intimate affections of Emili; and (2) "Emili had told him a lot of shit of how you are interested in fucking her" and Mr. Palpallotoc was not going to let that happen. Plaintiff Webb alleges that as the statements were made to him, several of the restaurant patrons hurried to their cars and others backed away from him. He further alleges that the statements defamed his character. While the statements may have proved embarrassing to plaintiff Webb, he has not alleged that any of the statements are false. Rather, in the first statement, Mr. Palpallotoc merely expresses an opinion, and in the second statement, he relays to plaintiff Webb only what Emili had told him. Accordingly, the claim for defamation is dismissed with leave to amend. III. Intentional Infliction of Emotional Distress To establish a claim for intentional infliction of emotional distress, a plaintiff must allege (1) outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Peter E. Kiseskey, et al. v. Carpenters' Trust for Southern Ca., et al., 144 Cal. App.3d 222, 229 (1983). "The Restatement view is that liability `does not extend to mere insults, indignities,, threats, annoyances, petty oppressions, or other trivialities . . . There is no occasion for the law to intervene . . . where someone's feelings are ORDER, page 6

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hurt." Id. at 230. Plaintiff has not pled severe emotional suffering. Rather, plaintiff makes only conclusory statements, such as "[t]his incident was so emotionally distressing that Plaintiff sought the assistance of Lynne Johnson, Chief of Police with the Palo Alto Police Department by writing my initial correspondence on 20 Oct 2008 [attached as Exhibit], Police Chief reply on 04 November 2008 [attached as Exhibit], and Plaintiff finally correspondence on 10 Nov 2008 [attached as Exhibit]." Plaintiff fails to specify the nature and extent of the emotional suffering he endured. Accordingly, the claim for intentional infliction of emotional distress is dismissed with leave to amend. IV. Negligent Supervision To establish a cause of action for negligent supervision, plaintiff must allege: (1) the existence of a legal duty of employer to employee to use due care; (2) how the defendant breached that duty; (3) how any breach proximately caused plaintiff's damages; and (4) damages.2 Greenfield v. America West Airlines, Inc., 2004 WL 2600135 *6 (N.D. Cal.). See also, Costello v. FedEx Kinko's Office and Print Services, Inc., 2008 WL 4822570 *3 (C.D. Cal.) ("a plaintiff must allege all of the general elements of negligence, including establishing that the employer's breach of the duty to use care `was the proximate or legal cause of the resulting injury.")(internal citations omitted). Plaintiff refers to defendant Darden Restaurant's Code of Business Conduct and Ethics to establish the element of duty. It states in pertinent part as follows: Darden's core purpose is to nourish and delight everyone we serve, as supported by our core values of integrity and fairness, respect and caring, diversity, always learning - always teaching, being `of service,' teamwork and excellence. The Company expects each employee to reflect these core values and exercise the highest levels of integrity, ethics and objectivity in actions and relationships which may affect the Company . . . . When there is doubt as to whether an action is appropriate, or whether it will cause embarrassment to the Company or its reputation, it should be avoided. Plaintiff alleges that the duty was breached when the restaurant manager Lisa Chorello Plaintiff Webb refers to a claim for negligent misconduct. Because he is proceeding pro se, the court presumes that in the context of how the claim is pled that plaintiff Webb seeks to allege a claim for negligent supervision. ORDER, page 7
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failed to intervene before the restaurant employees, Mr. Palpallotoc and the employee described as a large pacific islander, caused him emotional distress. In addition, he alleges that Mr. Palpallotoc failed to prevent the large pacific islander from acting in a threatening manner toward him. Even assuming that plaintiff Webb has established a legal duty and defendant Olive Garden's breach of that duty, he has not alleged causation. Indeed, plaintiff merely demands $400,000 in damages. He does not allege how the breach proximately caused his damages. Accordingly, the claim for negligent supervision is dismissed with leave to amend. IV. Punitive Damages As before, plaintiff has not alleged that defendant Olive Garden had advance knowledge of the unfitness of any of its employees, that defendant Olive Garden consciously disregarded the rights and safety of others, that defendant Olive Garden ratified any wrongful conduct or was personally guilty of oppression, fraud or malice. Viewing the facts in the light most favorable to plaintiff Webb, he has not established that any defendants exhibited malice, oppression or fraud. Accordingly, defendant Olive Garden's motion to strike the prayer for punitive damages is granted without leave to amend. CONCLUSION Based on the foregoing, defendant Olive Garden Italian Restaurant's motion to dismiss the second amended complaint is dismissed with leave to amend. Plaintiff Webb shall file an amended complaint no later than September 30, 2009. The case management conference is continued to November 17, 2009 at 2PM. Plaintiff Webb's motion to appear telephonically at the case management conference is denied as moot. IT IS SO ORDERED. Dated: September 2, 2009 ____________________________ PATRICIA V. TRUMBULL United States Magistrate Judge

ORDER, page 8

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A copy of the order was mailed on September 2, 2009 to the following: David Webb PO Box 312 Clearfield, Utah 84089

ORDER, page 9