Bridges v. Kohl's Stores, Inc.

• Court: District Court, E.D. California
• Decided: February 13, 2024
• Docket: 2:23-cv-00685
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAULINE BRIDGES, et al., No. 2:23-cv-00685-DAD-JDP 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 14 KOHL’S STORES, INC., (Doc. No. 10) 15 Defendant.

16 17 This matter is before the court on the motion to dismiss filed by defendant Kohl’s Stores, 18 Inc. on May 19, 2023. (Doc. No. 10.) On June 30, 2023, defendant’s motion was taken under 19 submission on the papers pursuant to Local Rule 230(g). (Doc. No. 17.) For the reasons 20 explained below, the court will grant defendant’s motion to dismiss. 21 BACKGROUND 22 On April 12, 2023, plaintiffs Pauline Bridges and Thomas Neal filed the complaint 23 initiating this lawsuit against defendant Kohl’s Stores, Inc. and unnamed Doe defendants 1–10, 24 alleging discrimination. (Doc. No. 1 at 1, 5–9.) Rather than serve the original complaint on 25 defendant, plaintiffs instead filed the operative first amended complaint (“FAC”) on April 18, 26 2023. (Doc. No. 6.) In their FAC, plaintiffs allege the following. 27 Plaintiff Neal and plaintiff Bridges are in a relationship with each other and both reside in 28 San Francisco County, California. (Doc. No. 6 at ¶¶ 1, 18.) Plaintiff Neal is a Black man and 1 plaintiff Bridges is a white woman. (Id. at ¶¶ 17–18.) On September 19, 2022, plaintiffs entered 2 the Kohl’s store in Stockton, California. (Id. at ¶ 12.) During their time shopping, a loss 3 prevention associate named Erica “made herself extremely present.” (Id.) Plaintiffs were 4 uncomfortable with Erica’s hostile disposition and how aggressively she followed them. (Id.) At 5 some point while shopping, plaintiff Bridges decided to step outside the store for a few minutes to 6 get some air. (Id. at ¶ 13.) Before doing so, she asked plaintiff Neal to grab a shoe box marked 7 with a clearance tag that matched the shoes they had already put in their cart so they could show 8 the clearance tag to the clerk at checkout. (Id. at ¶¶ 13, 15.) 9 As plaintiff Neal attempted to return to the shoe department, Erica approached him and 10 asked if she could help. (Id. at ¶ 14.) Plaintiff Neal responded that he was fine and explained that 11 he was returning to the shoe department to grab a pair of shoes that were marked on clearance 12 that matched the pair that he already had in his cart. (Id. at ¶ 15.) Erica then pulled out her 13 phone, looked at the shoes, and informed plaintiff Neal that those shoes would not be on 14 clearance because of their popularity. (Id. at ¶ 16.) Plaintiff Neal felt uncomfortable and turned 15 the cart around to head towards the jewelry department. (Id. at ¶ 17.) Erica grabbed the cart and 16 said she would take it to customer service until his girlfriend came back in and was ready to 17 check out. (Id.) 18 Plaintiff Neal then walked outside to meet plaintiff Bridges and let her know what had 19 happened. (Id. at ¶ 18.) Together the plaintiffs went back into the store, headed for the shoe 20 department, and found the same shoes that Erica had said were not on sale marked for clearance. 21 (Id.) Plaintiffs then picked up several boxes of shoes, went to the front, and spoke with the 22 manager about the entire situation. (Id. at ¶ 19.) The manager apologized profusely and 23 accompanied plaintiffs to pick up their cart and then to the checkout stand. (Id.) 24 This incident has subsequently bothered plaintiffs every day. (Id. at ¶ 22.) Plaintiff Neal 25 has lost confidence in himself and feels as if he is subhuman because of the color of his skin. 26 (Id.) Plaintiff Bridges is devastated and feels like she would always be targeted if she associates 27 with a person of color. (Id.) 28 ///// 1 Based on these allegations set forth in their FAC, plaintiffs bring the following four claims 2 against defendant: (1) discrimination in violation of California’s Unruh Civil Rights Act (“Unruh 3 Act”), California Civil Code §§ 51, et seq.; (2) intentional infliction of emotional distress; (3) 4 negligent hiring, training, supervision, and/or retention; and (4) discrimination in violation of 42 5 U.S.C. § 1981.1 (Doc. No. 6 at 1, 5–11.) 6 On May 19, 2023, defendant filed the pending motion to dismiss plaintiffs’ FAC in its 7 entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 10-1.) On May 26, 8 2023, plaintiffs filed an opposition to the pending motion to dismiss, and on June 5, 2023, 9 defendant filed its reply thereto. (Doc. Nos. 15, 16.) 10 LEGAL STANDARD 11 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 12 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 13 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 14 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 15 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 16 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 17 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 18 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 19 Iqbal, 556 U.S. 662, 678 (2009). 20 In determining whether a complaint states a claim on which relief may be granted, the 21 court accepts as true the allegations in the complaint and construes the allegations in the light 22 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, 23 the court need not assume the truth of legal conclusions cast in the form of factual allegations. 24 U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not 25 require detailed factual allegations, “it demands more than an unadorned, the-defendant- 26 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers 27 1 The first three claims are brought by both plaintiffs. The fourth claim is brought by plaintiff 28 Neal only. 1 mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 2 Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements 3 of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is 4 inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the 5 defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. 6 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 7 ANALYSIS 8 A. Plaintiffs’ Claims 9 1. Unruh Act Claim 10 The Unruh Act “is a public accommodations statute that focuses on discriminatory 11 behavior by business establishments.” Stamps v. Superior Court, 136 Cal. App. 4th 1441, 1452 12 (2006) (citation omitted). It states that “[a]ll persons within the jurisdiction of this state are free 13 and equal, and no matter what their sex, race, color . . . are entitled to the full and equal 14 accommodations, advantages, facilities, privileges, or services in all business establishments of 15 every kind whatsoever.” Cal. Civ. Code § 51(b). 16 To state a claim under the Unruh Act, a plaintiff must sufficiently allege the following 17 elements: (1) he suffered discrimination “in a business establishment;” (2) his protected status 18 “was a motivating factor;” (3) the defendant’s action “was the result of its intentional 19 discrimination” against the plaintiff; and (4) the “wrongful conduct caused him to suffer injury.” 20 H.M. v. Cnty. of Kern, No. 1:20-cv-1339-JLT-BAM, 2022 WL 1625183, at *3 (E.D. Cal. May 23, 21 2022). “To plead intentional discrimination, [a] plaintiff cannot merely invoke his race in the 22 course of a claim’s narrative.” Jimenez v. Home Depot Inc., No. 2:23-cv-00937-WBS-AC, 2023 23 WL 5021266, at *3 (E.D. Cal. Aug. 7, 2023). Further, a personal belief of discrimination, 24 without any factual support, is “insufficient to satisfy federal pleading standards.” Corral v. Bank 25 of Am., N.A., No. 16-cv-00964-EMC, 2016 WL 4070132, at *4 (N.D. Cal. July 29, 2016). 26 a. Plaintiff Neal’s Unruh Claim 27 In its pending motion to dismiss, defendant argues that plaintiff Neal has not adequately 28 plead the third requisite element for his Unruh claim because the FAC contains no facts to 1 support plaintiff Neal’s allegation that its loss prevention associate’s conduct was undertaken 2 with discriminatory intent. (Doc. No. 10-1 at 11–12.) In their FAC, plaintiffs allege that 3 discriminatory intent is clear because defendant’s “employee seized Plaintiffs’ cart from Plaintiff 4 Neal (a Black customer) promising to return it only when Plaintiff Bridges (a White customer) 5 returned to the store,” and the “employee gave Plaintiff false information about the shoes being 6 on clearance which demonstrates her total dislike for his race as no other reason explains this 7 action.” (Doc. No. 6 at ¶ 32.) Plaintiffs further allege that “[o]ther [n]on-Black customers were 8 not treated in the same way and never treated in the same way.” (Id.) However, these allegations 9 are conclusory and thus insufficient to state a cognizable claim under the Unruh Act. See 10 Johnson v. United States, No. 23-cv-02336-DMR, 2024 WL 85871, at *4 (N.D. Cal. Jan. 8, 2024) 11 (finding that the plaintiff’s allegations of intentional discrimination in her Unruh Act claim were 12 “entirely conclusory” where they did not include “comments, conduct, or instances where others 13 were treated differently that would support her claims”) (citation and internal quotation marks 14 omitted). 15 Accordingly, the court will dismiss plaintiff Neal’s Unruh Act claim. See Card v. Ralph 16 Lauren Corp., No. 18-cv-02553-JSC, 2018 WL 4108082, at *8 (N.D. Cal. Aug. 29, 2018) 17 (dismissing the plaintiff’s Unruh Act claim where plaintiff alleged that “the only conclusion that 18 can reasonably be drawn is that the treatment . . . could only be explained by animus toward her 19 immutable characteristics”); Jones v. Dollar Tree Stores, Inc., No. 21-cv-7441-PA-PVC, 2021 20 WL 6496822, at *6 (C.D. Cal. Nov. 4, 2021) (dismissing the plaintiff’s Unruh Act claim because 21 it lacked “the necessary details and supporting facts to infer discriminatory intent”). Nonetheless, 22 plaintiff Neal will be granted leave to amend his Unruh Act claim because it is not absolutely 23 clear to the court that allowing further amendment in this regard would be futile. See Rosenberg 24 Bros. & Co. v. Arnold, 283 F.2d 406, 406 (9th Cir. 1960) (noting that the Ninth Circuit has a 25 policy of “extreme liberality generally in favoring amendments to pleadings.”); Fed. R. Civ. 26 P. 15(a) (providing that leave to amend should be granted “freely” when justice so requires). 27 ///// 28 ///// 1 b. Plaintiff Bridges’s Unruh Claim 2 Defendant also argues that plaintiff Bridges’s Unruh Act claim must be dismissed due to 3 her lack of standing since plaintiffs do not allege that any discriminatory conduct was directed 4 towards her, and plaintiffs allege that she was outside when the discriminatory conduct occurred. 5 (Doc. No. 10-1 at 12.) In their opposition, plaintiffs argue that plaintiff Bridges did suffer 6 unequal treatment, even though she was not present when the shopping cart was seized, because 7 the cart contained items that both she and plaintiff Neal wanted to purchase. (Doc. No. 15 at 3.) 8 With regard to standing, the California Supreme Court has explained that “a person 9 suffers discrimination under the [Unruh] Act when the person presents himself or herself to a 10 business with an intent to use its services but encounters an exclusionary policy or practice that 11 prevents him or her from using those services.” White v. Square, Inc., 7 Cal. 5th 1019, 1023 12 (2019). Here, plaintiffs’ FAC does not include any allegations that plaintiff Bridges was 13 prevented from using defendant’s services. Instead, plaintiffs allege that shortly after she 14 returned inside the store, plaintiffs picked up their cart and went to the checkout stand where they 15 were assisted by the store’s manager. (Doc. No. 6 at ¶¶ 18–19.) These allegations are 16 insufficient to state a cognizable Unruh Act claim on behalf of plaintiff Bridges. See Dalton v. 17 Home Away, Inc., No. 1:21-cv-1722-AWI-HBK, 2022 WL 4537912, at *13 (E.D. Cal. Sept. 28, 18 2022) (“A plaintiff must have actually been the victim of the defendant’s discriminatory action.”). 19 Thus, plaintiff Bridges’s Unruh Act claim will also be dismissed, but with leave to amend 20 granted. 21 2. Intentional Infliction of Emotional Distress (“IIED”) Claim 22 An IIED claim under California law requires: (1) extreme and outrageous conduct by the 23 defendant; (2) with the intention of causing emotional distress or reckless disregard of the 24 probability of causing emotional distress; (3) plaintiff’s suffering of severe emotional distress; 25 and (4) actual and proximate causation of plaintiff’s emotional distress by defendant’s conduct. 26 A.H. v. Sacramento Cnty. Dep’t of Child, Fam., & Adult Servs., No. 2:21-cv-00690-DAD-JDP, 27 2023 WL 2938380, at *6 (E.D. Cal. Apr. 13, 2023). In the pending motion to dismiss, defendant 28 ///// 1 challenges plaintiffs’ allegations with respect to the first and third requirements, which plaintiffs 2 argue are sufficiently alleged. (Doc. Nos. 10-1 at 13–16; 15 at 4–5.) 3 As to the first element, “[a] defendant’s conduct is outrageous when it is so extreme as to 4 exceed all bounds of that usually tolerated in a civilized society.” Hughes v. Pair, 46 Cal. 4th 5 1035, 1050–51 (2009) (citation and internal quotation marks omitted). However, discriminatory 6 conduct of any kind does not necessarily constitute extreme and outrageous conduct. James v. 7 U.S. Bancorp, No. 5:18-cv-01762-RGK-SP, 2019 WL 3058971, at *5 (C.D. Cal. Jan. 11, 2019) 8 (“Discriminatory conduct alone is not per se extreme and outrageous.”); Makhzoomi v. Sw. 9 Airlines Co., 419 F. Supp. 3d 1136, 1161 (N.D. Cal. 2019) (noting that the plaintiff “offers no 10 argument or authority to support that discriminatory conduct of any kind can constitute extreme 11 and outrageous conduct”). Instead, the nature of the discriminatory conduct alleged may support 12 an IIED claim. James, 2019 WL 3058971, at *5. 13 Here, plaintiffs allege that the loss prevention associate’s actions of seizing the shopping 14 cart and providing wrong information about the price of the shoes were extreme and outrageous 15 and transcend the bounds of normalcy. (Doc. No. 6 at 9–10.) The court disagrees. Holding a 16 shopping cart until checkout and giving incorrect pricing information, “particularly in the absence 17 of threatening or offensive language,” does not amount to the extreme and outrageous conduct 18 necessary to state a claim for IIED. Jimenez, 2023 WL 5021266, at *3. Plaintiffs have merely 19 stated in conclusory fashion that the alleged conduct was extreme and outrageous, without any 20 factual allegations to support that conclusion, which is insufficient to state an IIED claim. See 21 Jones, 2021 WL 6496822, at *6 (finding the plaintiff’s IIED allegations to be deficient as they 22 merely “rel[y] on a formulaic recitation of the elements for an IIED cause of action”). While 23 plaintiffs may allege that they were offended by the associate’s actions, “being offended is 24 insufficient to support a claim for IIED.” Jimenez, 2023 WL 5021266, at *3. Therefore, the 25 court concludes that plaintiffs have failed to allege facts sufficient to satisfy the first element of 26 an IIED claim. 27 As to the third element of an IIED claim, severe emotional distress has been defined as 28 “distress of such substantial quality or enduring quality that no reasonable man in a civilized 1 society should be expected to endure it.” Monte v. City of Lodi, No. 2:17-cv-00411-MCE-DB, 2 2018 WL 1993806, at *6 (E.D. Cal. Apr. 27, 2018) (finding that the plaintiff’s allegations of lost 3 sleep, nervousness, anxiety, and requiring professional mental health services did not suggest 4 sufficiently severe emotional distress to state a claim for IIED). In their FAC, plaintiffs allege 5 that they were left emotionally drained by this incident and now suffer severe emotional pain 6 every day. (Doc. No. 6 at ¶ 40.) As currently pled, this description essentially recites the third 7 element of an IIED claim with no elaboration. In their opposition to the pending motion, 8 plaintiffs explain that this is because the emotional trauma is beyond description. (Doc. No. 15 at 9 5.) However, a sufficient description of the facts supporting an IIED claim is required to meet 10 federal pleading standards. See McKeon v. Cent. Valley Cmty. Sports Found., No. 1:18-cv-0358- 11 BAM, 2018 WL 6436256, at *7 (E.D. Cal. Dec. 7, 2018) (explaining that the “[p]laintiffs simply 12 recite the elements of emotional distress claims, which is insufficient to survive a motion to 13 dismiss”); R.N. by & through Neff v. Travis Unified Sch. Dist., No. 2:20-cv-00562-KJM-JDP, 14 2020 WL 7227561, at *14 (E.D. Cal. Dec. 8, 2020) (granting the defendants’ motion to dismiss 15 where the “plaintiffs’ complaint does little more than recite the elements of an IIED claim”). 16 Therefore, the court concludes that plaintiffs have likewise failed to allege facts sufficient 17 to satisfy the third element of an IIED claim. Accordingly, the court will dismiss plaintiffs’ IIED 18 claim with leave to amend. 19 3. Negligent Hiring, Training, Supervision, and Retention Claim 20 In California, “an employer can be held liable for negligent hiring if he knows the 21 employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to 22 discover the employee’s unfitness before hiring him.” Evan F. v. Hughson United Methodist 23 Church, 8 Cal. App. 4th 828, 843 (1992). However, “when nothing exists to suggest that [a] 24 prospective employee poses a threat to those he or she may encounter in the course of the work,” 25 the employer’s hiring of that employee does not constitute negligent hiring. Federico v. Superior 26 Court of Sacramento Cnty., 59 Cal. App. 4th 1207, 1213 (1997). To state a claim for negligent 27 training, a plaintiff must allege that: (1) there is an inadequate training program, (2) there is 28 deliberate indifference on the part of defendant in adequately training its employees, and (3) the 1 inadequate training actually caused a deprivation of rights. Calhoon v. City of S. Lake Tahoe, No. 2 2:19-cv-02165-KJM-JDP, 2020 WL 5982087, at *6 (E.D. Cal. Oct. 8, 2020) (citing Merritt v. 3 City of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989)). Liability for negligent supervision of an 4 employee requires “knowledge by the principal that the agent or servant was a person who could 5 not be trusted to act properly without being supervised.” Noble v. Sears, Roebuck & Co., 33 Cal. 6 App. 3d 654, 664 (1973). And finally, liability for negligent retention occurs “when the employer 7 knew or should have known that . . . retaining the employee created a particular risk or hazard and 8 that particular harm materializes.” Garcia ex rel. Marin v. Clovis Unified Sch. Dist., 627 F. Supp. 9 2d 1187, 1208 (E.D. Cal. 2009). 10 In their FAC, plaintiffs allege that defendant hired unfit or incompetent employees, that 11 defendant knew or should have known that the employees were unfit or incompetent, and that this 12 unfitness or incompetence created a risk to others. (Doc. No. 6 at ¶ 42.) They also allege that 13 defendant’s negligence in hiring, training, supervising, and/or retaining those employees was a 14 substantial factor in causing plaintiffs injury. (Id. at ¶ 43.) Plaintiffs advance no other allegations 15 related to this cause of action, and the allegations they do include in their FAC are insufficient to 16 state a claim for negligent hiring, training, supervision, and retention. See Molina v. City of 17 Visalia, No. 1:13-cv-01991-LJO, 2014 WL 1329711, at *1 (E.D. Cal. Apr. 2, 2014) (finding that 18 plaintiffs failed to state a claim where their complaint contained “generic assertions” but no 19 “specific factual allegations to support these conclusory assertions”); Avila v. California, No. 20 1:15-cv-00996-JAM-GSA, 2015 WL 6003289, at *6 (E.D. Cal. Oct. 14, 2015) (“Simply alleging 21 that [the employee] ‘failed to properly and adequately train and supervise the law enforcement 22 personnel employed by [him]’ is insufficient, alone, to state a claim against CHP.”). As a result, 23 the court will dismiss plaintiffs’ claim of negligent hiring, training, supervising, and/or retention, 24 with leave to amend. Carolina Cas. Ins. Co. v. Oahu Air Conditioning Serv., Inc., No. 2:13-cv- 25 01378-WBS-AC, 2015 WL 6447484, at *3 (E.D. Cal. Oct. 23, 2015) (dismissing the plaintiff’s 26 claim of negligent hiring, retaining, or supervising where the complaint contained only a 27 conclusory statement and was “unsupported by any facts”). 28 ///// 1 4. Plaintiff Neal’s Section 1981 Discrimination Claim 2 Section 1981 states that “[a]ll persons within the jurisdiction of the United States shall 3 have the same right in every State and Territory to make and enforce contracts.” 42 U.S.C. 4 § 1981. The statute defines the term “make and enforce contracts” to include “the making, 5 performance, modification, and termination of contracts, and the enjoyment of all benefits, 6 privileges, terms, and conditions of the contractual relationship.” (Id.) To state a discrimination 7 claim under § 1981, a plaintiff must allege that he: (1) is a member of a protected class; 8 (2) attempted to contract for certain services; and (3) was denied the right to contract for those 9 services. Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1145 (9th Cir. 2006). In addition, “[t]he 10 plaintiff must also plausibly allege that the defendant impaired that relationship on account of 11 intentional discrimination.” Astre v. McQuaid, 804 F. App’x 665, 666 (9th Cir. 2020).2 12 Defendant argues that plaintiffs have not adequately alleged that plaintiff Neal attempted 13 to contract for certain services or was denied the right to do so. (Doc. No. 10-1 at 18.) The court 14 agrees that plaintiff Neal has not alleged an impaired contractual relationship as required to state a 15 cognizable claim under § 1981. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) 16 (“Any § 1981 claim . . . must initially identify an impaired contractual relationship . . . under 17 which the plaintiff has rights.”). Plaintiffs’ FAC does not identify an attempt to contract that was 18 denied, since plaintiffs do not allege that plaintiff Neal made any attempts to effectuate a 19 purchase or that those efforts to make a purchase were thwarted. Plaintiffs’ allegations that a 20 store employee seized plaintiff Neal’s cart and misinformed him about the price of a pair of shoes 21 are not sufficient, as at most they raise an inference that that there was a delay in the process of 22 entering a contractual relationship and checking out. (Doc. No. 6 at 4.) Moreover, in the absence 23 of Ninth Circuit authority to the contrary, the court is persuaded by out-of-circuit decisions which 24 suggest that mere delays do not amount to denials of the right to contract for purposes of a § 1981 25 claim. See Lopez v. Target Corp., 676 F.3d 1230, 1234 (11th Cir. 2012) (finding that where the 26 plaintiff was still “able to make his desired purchase from Target, on the same terms available to 27 2 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 any other customer,” one cashier’s “discriminatory conduct did not impair [the plaintiff’s] right to 2 make contracts under § 1981”) (citing Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) 3 (“To establish a deprivation of § 1981 rights in the retail context, the plaintiff must demonstrate 4 ‘the loss of an actual . . . contract interest.’”)); see also Knight v. Wells Fargo Bank NA, 459 F. 5 Supp. 3d 1288, 1292–93 (N.D. Cal. 2019) (discussing the “general rule that a mere delay in 6 service will not demonstrate an actual contract loss” before finding that the plaintiff “has alleged 7 something more than delayed or poor service” to state a claim under § 1981) (citation and internal 8 quotation marks omitted); Marshall v. Ross Stores, Inc., No. 20-cv-04703-PSG-PLA, 2020 WL 9 8173022, at *3 (C.D. Cal. Oct. 14, 2020) (citing the decision in Lopez in concluding that the 10 plaintiffs failed to state a § 1981 claim where their shopping trip was interrupted by their need to 11 use the restroom and the defendant’s refusal to let them do so). 12 For these reasons, the court will dismiss plaintiff Neal’s § 1981 claim, with leave to 13 amend. 14 B. Plaintiffs’ Prayer for Relief 15 In addition to moving to dismiss plaintiffs’ substantive claims, defendant also moves to 16 dismiss certain forms of relief that plaintiffs have included in their prayer for relief. (Doc. No. 17 10-1 at 19–22.) 18 1. Punitive Damages 19 California law limits the ability to impose punitive damages on a corporate employer for 20 the acts of an employee. See Cal. Civ. Code § 3294. There are three paths under the applicable 21 state statute to punitive damages: (1) if an officer, director, or managing agent of the corporate 22 employer knew of the employee’s unfitness and employed her with conscious disregard for the 23 rights of others; (2) if an officer, director, or managing agent of the corporation authorized or 24 ratified the employee’s oppressive, fraudulent, or malicious conduct; or (3) if the employer was 25 personally guilty of oppression, fraud, or malice. Id.; Schluckbier v. Mastec N. Am., Inc., No. 14- 26 cv-02047-VAP-DTB, 2015 WL 13918498, at *3 (C.D. Cal. Mar. 10, 2015). 27 Defendant moves to dismiss plaintiffs’ request for punitive damages because the FAC 28 lacks supporting factual allegations that any officer, director, or managing agent knew that the 1 loss prevention associate was an unfit employee and nonetheless employed her or ratified her 2 conduct. (Doc. No. 10-1 at 19.) Plaintiffs argue in opposition that they seek punitive damages 3 where allowed and according to proof, and they cannot be expected to know more specific facts at 4 this early stage of the litigation. (Doc. No. 15 at 9.) 5 Federal pleading standards require that a complaint contains sufficient factual allegations 6 to state a claim for punitive damages that is plausible on its face. See Rozier v. Dep’t of 7 Homeland Sec. Fed. Protective Serv., No. 2:21-cv-07232-SB-AFM, 2022 WL 2199938, at *2 8 (C.D. Cal. Mar. 7, 2022). Here, plaintiff has not sufficiently alleged any facts that if proven 9 would show that a managing agent or supervisory employee at Kohl’s knew of the loss prevention 10 associate’s unfitness, ratified her conduct, or were themselves personally guilty of oppression, 11 fraud or malice. Thus, defendant’s motion to dismiss plaintiffs’ prayer for punitive damages will 12 be granted, with leave to amend. See Schluckbier, 2015 WL 13918498, at *5 (finding the 13 plaintiff’s request for punitive damages “untenable” under the § 3294(b) framework). 14 2. Declaratory and Injunctive Relief 15 Plaintiffs seek declaratory and injunctive relief in this case. (Doc. No. 6 at 12.) However, 16 as defendant notes in its motion to dismiss, plaintiffs provide no further detail regarding what 17 specific declaratory and injunctive relief they are requesting. (Doc. No. 10-1 at 21.) In their 18 opposition, plaintiffs merely respond that defendant is on sufficient notice as to the declaratory 19 and injunctive relief. (Doc. No. 15 at 9–10.) In its reply, defendant argues that they have no 20 notice because there are no details whatsoever regarding the declaratory and injunctive relief 21 sought by plaintiffs in this action. (Doc. No. 16 at 7.) 22 “[C]onclusory claims to injunctive and/or declaratory relief—without descriptions of the 23 particular relief sought and supporting factual allegations . . . are not sufficient to state a 24 cognizable claim upon which relief may be granted.” Quezada v. California, No. 1:20-cv-00959- 25 DAD-SAB, 2021 WL 2417119, at *6 (E.D. Cal. June 14, 2021). In their FAC, plaintiffs have not 26 requested or described any specific injunctive or declaratory relief. Their argument that 27 defendant is on sufficient notice of what they seek in this regard is not supported by the 28 allegations of their FAC. Therefore, the court will dismiss plaintiffs’ claims for declaratory and 1 | injunctive relief, with leave to amend. 2 3. Attorneys’ Fees 3 Plaintiffs also seek attorneys’ fees in this action. (Doc. No. 6 at 12.) Plaintiffs and 4 | defendant appear to agree that the availability of attorneys’ fees in this case is predicated on the 5 | success of plaintiffs’ claims brought under the Unruh Act and § 1981. (Doc. Nos. 10-1 at 21; 15 6 | at 10.) Given that these claims will be dismissed with leave to amend, the availability of 7 | attorneys’ fees will depend on whether those claims are adequately pled in any amended 8 | complaint plaintiffs elect to file. As such, defendant’s motion to dismiss plaintiffs’ claim for 9 | attorneys’ fees in their prayer for relief will also be granted, with leave to amend. 10 CONCLUSION 11 For the reasons explained above: 12 1. Defendant’s motion to dismiss plaintiffs’ first amended complaint (Doc. No. 10) is 13 granted, with leave to amend; 14 2. Plaintiffs shall file their second amended complaint if they continue to wish to 15 pursue this action, or alternatively, a notice of their intent not to do so, within 16 twenty-one (21) days from the date of entry of this order; and 17 3. Plaintiffs are warned that their failure to comply with this order may result in 18 dismissal of this action for failure to prosecute. 19 IT IS SO ORDERED. | Dated: _ February 12, 2024 □□□ A. 2, axel 21 DALE A. DROZD 0 UNITED STATES DISTRICT JUDGE

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