Webb v. Olive Garden Italian Restaurants/Darden Restaurants et al, No. 5:2008cv04913 - Document 66 (N.D. Cal. 2009)
Court Description: 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)
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Webb v. Olive Garden Italian Restaurants/Darden Restaurants et al Doc. 66 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 DAVID WEBB, 13 14 15 16 17 ) ) 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] 18 INTRODUCTION 19 Defendant Olive Garden Italian Restaurant/Darden Restaurants moves to dismiss the 20 second amended complaint. (“Olive Garden”). Plaintiff David Webb proceeding pro se opposes 21 the motion. Pursuant to Civ. L.R. 7-1(b), the motion was taken under submission. Having 22 reviewed the papers and considered the arguments of counsel and plaintiff, defendant Olive 23 Garden’s motion to dismiss the second amended complaint is dismissed with leave to amend.1 24 25 26 27 28 1 The holding of this court is limited to the facts and the particular circumstances underlying the present motion. ORDER, page 1 Dockets.Justia.com 1 2 BACKGROUND On July 2, 2008, plaintiff Webb dined with two female companions at the Olive Garden 3 Restaurant located in Palo Alto, CA. During the course of the meal, he alleges that he 4 befriended an on-duty floor supervisor named Emili. Plaintiff Webb later escorted his two 5 female companions to their respective cars and returned to the restaurant to speak further with 6 Emili. Based on their conversation which lasted approximately 10 minutes, plaintiff Webb 7 believed that Emili was receptive to his romantic overtures and that he could return to speak with 8 her again. Specifically, plaintiff Webb alleges that: “Emili sincerely told me that she had a 9 boyfriend but that we could continue communicating and for the immediate future, I could come 10 by the restaurant to see and talk with her from time to time. I left with the clear understanding 11 that we would engage in mutual conversation until Emili felt more comfortable to exchange 12 contact information.” 13 On July 3, 2008, plaintiff Webb returned to the restaurant in an effort to resume contact 14 with Emili. However, the restaurant was temporarily closed because the sewage system was not 15 working properly and at least eight patrons were milling outside in the parking lot. In the 16 parking lot, plaintiff Webb informed a young male restaurant employee that he wanted to extend 17 an invitation to Emili. The young male restaurant employee went inside the restaurant and 18 plaintiff Webb waited outside for her. Instead of meeting with Emili however, a restaurant sales 19 manager named Jacob Palpallatoc approached plaintiff Webb with a repeated pushing motion of 20 his hands. Mr. Palpallotoc stated to plaintiff Webb that he was not welcome at the restaurant 21 because of his efforts “to solicit the intimate affections of Emili.” Plaintiff Webb alleges that 22 Mr. Palpallotoc had a “menacing look in his eyes” and stood in a “combative posture.” In 23 response to Mr. Palpallotoc’s statements, plaintiff Webb identified himself and again stated that 24 he merely wanted to invite Emili to a professional event. Mr. Palpallotoc stated that Emili 25 wanted nothing from plaintiff Webb and that she had told him “a lot of shit of how you are 26 interested in fucking her” and he was not going to let that happen. Plaintiff Webb objected to the 27 public statements made by Mr. Palpallatoc as the restaurant patrons watched. He felt that the 28 restaurant patrons viewed him as a troublemaker, or worse, a criminal. Indeed, several of the restaurant patrons ORDER, page 2 1 scurried to their cars and others backed away from him. Mr. Palpallotoc continued to approach 2 plaintiff Webb and came within two feet of his comfort zone, which caused him to take two steps 3 backwards. At that point, another person that plaintiff Webb describes as a large pacific 4 islander, and bearing a badge, emerged from the restaurant. That person approached Mr. 5 Palpallotoc and plaintiff Webb and pounded his closed fist into his other open hand. Mr. 6 Palpallotoc informed plaintiff Webb that that person was his back up. Plaintiff Webb objected to 7 the treatment by both Mr. Palpallatoc and the person plaintiff Webb describes as a large pacific 8 islander. Plaintiff Webb alleges that the person he describes as a large pacific islander continued 9 his threatening and ominous behavior throughout the course of his ten minute conversation with 10 Mr. Palpallotoc. 11 exchange between himself, Mr, Palpallotoc and the large pacific islander. Plaintiff Webb asked 12 Mr. Palpallatoc and the large pacific islander each to provide him with their business cards. 13 Only Mr. Palpallotoc acceded to the request. The large pacific islander remained in close 14 proximity to where plaintiff Webb stood and began to approach him in “quick step.” Plaintiff 15 Webb asked Mr. Palpallotoc to stop his colleague from continuing his threatening behavior. 16 Thereafter, the same woman standing nearby instructed both Mr. Palpallotoc and the Plaintiff Webb then noticed a woman with “stern eyes” observing the 17 large pacific islander to go inside the restaurant. She stated, “ . . . [I am the] General Manager of 18 the restaurant and knew I had to step in at that moment before things got anymore out of hand 19 because I am responsible for their actions . . . .” The woman identified herself to plaintiff Webb 20 as Lisa Chorello. Defendant Chorello told plaintiff Webb that she would talk to Mr. Palpallotoc 21 and the large pacific islander about their behavior. Plaintiff Webb informed her that he would 22 write the owners of the restaurant about the incident. She then provided her name to plaintiff 23 Webb by writing it on the back of Mr. Palpallotoc’s business card. 24 Pursuant to the order granting defendant Olive Garden’s motion to dismiss with leave to 25 amend dated March 19, 2009, plaintiff Webb filed a second amended complaint alleging claims 26 of assault, defamation, intentional infliction of emotional distress and negligent supervision. 27 (“March 19, 2009 Order”). Plaintiff Webb alleges jurisdiction pursuant to 28 U.S.C. §§ 1331 28 and 1332. He seeks damages in excess of $1 million. ORDER, page 3 1 LEGAL STANDARD 2 A complaint may be dismissed for failure to state a claim upon which relief can be 3 granted. Fed. R. Civ. P. 12(b)(6). The dismissal may be based on either the lack of a cognizable 4 legal theory or the absence of sufficient facts under a cognizable legal theory. Balistreri v. 5 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) and Robertson v. Dean Witter Reynolds, 6 Inc., 749 F.2d 530, 533-534 (9th Cir. 1984). For purposes of evaluating a motion to dismiss, the 7 allegations in a complaint are taken as true and construed in the light most favorable to the 8 nonmoving party. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 9 1995). “A complaint should not be dismissed unless a plaintiff could prove no set of facts in 10 support of his claim that would entitle him to relief.” Id. Generally, a motion to dismiss for 11 failure to state a claim is viewed with disfavor and rarely granted. Gilligan v. Jamco Develop. 12 Corp., 108 F.3d 246, 249 (9th Cir. 1997). 13 However, mere conclusions couched in factual allegations are not sufficient to state a 14 cause of action. Papasan v. Allain, 478 U.S. 265, 286 (1986). See also, McGlinchy v. Shell 15 Chem Co., 845 F.2d 802, 810 (9th Cir, 1988). The complaint must aver “[f]actual allegations [] 16 enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 17 500 U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 18 (1957)). “A claim has facial plausibility when the pleaded factual content allows the court to 19 draw the reasonable inference that the defendant is liable for the misconduct alleged.” John D. 20 Ashcroft, et al. v. Javaid Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1941, 173 L.Ed.2d 868 (2009). 21 “[D]etermining whether a complaint states a plausible claim is context-specific, requiring the 22 reviewing court to draw on its experience and common sense.” Id. “[L]eave [to amend] shall be 23 freely given when justice so requires.” Fed. R. Civ. P. 15(a). Additionally, a federal court may 24 liberally construe the “inartful pleading” of parties appearing pro se. Hughes v. Rowe, 449 U.S. 25 5, 9, 101 S.Ct. 173, 176 (1980). 26 DISCUSSION 27 In the second amended complaint, plaintiff Webb alleges the following claims: (1) 28 assault; (2) defamation; (3) intentional infliction of emotional distress; and (4) negligent ORDER, page 4 1 supervision. Defendant Olive Garden moves to dismiss all of the claims alleged in the second 2 amended complaint and further moves to strike the prayer for punitive damages. Each of these 3 alleged claims are considered in turn. 4 I. 5 Assault “Generally speaking, an assault is a demonstration of an unlawful intent by one person to 6 inflict immediate injury on the person of another then present.” Lowery v. Standard Oil Co. of 7 California, 63 Cal. App. 2d 1, 6-7 (1944). See also, Medora v. City & County of San Francisco, 8 2007 WL 2522319 *5 (N.D. Cal.)); and De La Cerra Frances v. De Anda, 224 Fed. Appx. 637, 9 639 (9th Cir. 2007). The tort of assault is complete when the anticipation of harm occurs. 10 Kiseskey v. Carpenters’ Trust for Southern California, 144 Cal. App. 3d 222, 232 (1983). “A 11 civil action for assault is based on an invasion of the right of a person to live without being put in 12 fear of personal harm.” Lowery v. Standard Oil Co. of California, 63 Cal. App. 2d at 7. 13 Here, plaintiff Webb alleges that Mr. Palpallotoc approached him with a pushing motion 14 of his hands and came within two feet of his comfort zone which caused plaintiff to take two 15 steps backwards in an effort to avoid any contact with him. Plaintiff Webb alleges that he took 16 two steps backwards because Mr. Palpallotoc came within two feet of his comfort zone. He 17 further alleges that Mr. Palpallotoc had a “menacing look in his eyes” and stood in a combative 18 stance. He does not allege that he anticipated harm or that he was in fear of immediate injury. 19 Indeed, moments thereafter, plaintiff Webb requests that Mr. Palpallotoc provide him with his 20 business card. The act of using a pushing motion with hands as alleged, in and of itself, fails to 21 demonstrate an intent by Mr. Palpallotoc to inflict immediate injury. 22 Plaintiff Webb also alleges that the person he describes as a large pacific islander 23 committed an assault against him. Specifically, he alleges that the large pacific islander 24 approached him and repeatedly pounded his clenched fist into an open hand as he approached 25 him and stood nearby during his conversation with Mr. Palpallotoc. Again, the facts as alleged, 26 in and of itself, do not demonstrate an intent by the large pacific islander to inflict immediate 27 injury. Accordingly, both assault claims are dismissed with leave to amend. 28 ORDER, page 5 1 II. 2 Defamation A claim of defamation requires the following elements: (1) publication that is; (2) false; 3 (3) defamatory: (4) unprivileged; and that (5) has a natural tendency to injure or that causes 4 special damage. Taus v. Loftus, 40 Cal. 4th 683, 720 (2007). “A communication is defamatory 5 if it ‘tends to harm the reputation of another as to lower him in the estimation of the community 6 or to deter third persons from associating or dealing with him.’” Greenfield v. America West 7 Airlines, Inc., et al., 2004 WL 2600135 *5 (N.D. Cal.)(internal citations omitted). “Under 8 principles of respondeat superior, an employee may be held liable for a defamatory statement 9 made by its employee.” Id. 10 In the second amended complaint, plaintiff Webb alleges that the following statements 11 were made to him in the Olive Garden parking lot when at least eight restaurant patrons watched 12 nearby: (1) you are not welcome here for any reason due to your efforts to solicit the intimate 13 affections of Emili; and (2) “Emili had told him a lot of shit of how you are interested in fucking 14 her” and Mr. Palpallotoc was not going to let that happen. Plaintiff Webb alleges that as the 15 statements were made to him, several of the restaurant patrons hurried to their cars and others 16 backed away from him. He further alleges that the statements defamed his character. While the 17 statements may have proved embarrassing to plaintiff Webb, he has not alleged that any of the 18 statements are false. Rather, in the first statement, Mr. Palpallotoc merely expresses an opinion, 19 and in the second statement, he relays to plaintiff Webb only what Emili had told him. 20 Accordingly, the claim for defamation is dismissed with leave to amend. 21 III. 22 Intentional Infliction of Emotional Distress To establish a claim for intentional infliction of emotional distress, a plaintiff must allege 23 (1) outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the 24 probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and 25 proximate causation of the emotional distress. Peter E. Kiseskey, et al. v. Carpenters’ Trust for 26 Southern Ca., et al., 144 Cal. App.3d 222, 229 (1983). “The Restatement view is that liability 27 ‘does not extend to mere insults, indignities,, threats, annoyances, petty oppressions, or other 28 trivialities . . . There is no occasion for the law to intervene . . . where someone’s feelings are ORDER, page 6 1 hurt.” Id. at 230. 2 Plaintiff has not pled severe emotional suffering. Rather, plaintiff makes only conclusory 3 statements, such as “[t]his incident was so emotionally distressing that Plaintiff sought the 4 assistance of Lynne Johnson, Chief of Police with the Palo Alto Police Department by writing 5 my initial correspondence on 20 Oct 2008 [attached as Exhibit], Police Chief reply on 04 6 November 2008 [attached as Exhibit], and Plaintiff finally correspondence on 10 Nov 2008 7 [attached as Exhibit].” Plaintiff fails to specify the nature and extent of the emotional suffering 8 he endured. Accordingly, the claim for intentional infliction of emotional distress is dismissed 9 with leave to amend. 10 IV. 11 Negligent Supervision To establish a cause of action for negligent supervision, plaintiff must allege: (1) the 12 existence of a legal duty of employer to employee to use due care; (2) how the defendant 13 breached that duty; (3) how any breach proximately caused plaintiff’s damages; and (4) 14 damages.2 Greenfield v. America West Airlines, Inc., 2004 WL 2600135 *6 (N.D. Cal.). See 15 also, Costello v. FedEx Kinko’s Office and Print Services, Inc., 2008 WL 4822570 *3 (C.D. 16 Cal.) (“a plaintiff must allege all of the general elements of negligence, including establishing 17 that the employer’s breach of the duty to use care ‘was the proximate or legal cause of the 18 resulting injury.”)(internal citations omitted). 19 20 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: 21 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. 22 23 24 25 26 Plaintiff alleges that the duty was breached when the restaurant manager Lisa Chorello 27 2 28 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 1 failed to intervene before the restaurant employees, Mr. Palpallotoc and the employee described 2 as a large pacific islander, caused him emotional distress. In addition, he alleges that Mr. 3 Palpallotoc failed to prevent the large pacific islander from acting in a threatening manner 4 toward him. 5 Even assuming that plaintiff Webb has established a legal duty and defendant Olive 6 Garden’s breach of that duty, he has not alleged causation. Indeed, plaintiff merely demands 7 $400,000 in damages. He does not allege how the breach proximately caused his damages. 8 Accordingly, the claim for negligent supervision is dismissed with leave to amend. 9 IV. 10 Punitive Damages As before, plaintiff has not alleged that defendant Olive Garden had advance knowledge 11 of the unfitness of any of its employees, that defendant Olive Garden consciously disregarded the 12 rights and safety of others, that defendant Olive Garden ratified any wrongful conduct or was 13 personally guilty of oppression, fraud or malice. Viewing the facts in the light most favorable to 14 plaintiff Webb, he has not established that any defendants exhibited malice, oppression or fraud. 15 Accordingly, defendant Olive Garden’s motion to strike the prayer for punitive damages is 16 granted without leave to amend. 17 18 CONCLUSION Based on the foregoing, defendant Olive Garden Italian Restaurant’s motion to dismiss 19 the second amended complaint is dismissed with leave to amend. Plaintiff Webb shall file an 20 amended complaint no later than September 30, 2009. 21 The case management conference is continued to November 17, 2009 at 2PM. Plaintiff 22 Webb’s motion to appear telephonically at the case management conference is denied as moot. 23 24 25 26 IT IS SO ORDERED. Dated: September 2, 2009 ____________________________ PATRICIA V. TRUMBULL United States Magistrate Judge 27 28 ORDER, page 8 1 A copy of the order was mailed on September 2, 2009 to the following: 2 David Webb PO Box 312 Clearfield, Utah 84089 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 ORDER, page 9
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