Floyd v. 24 Hour Fitness USA, LLC.

• Court: District Court, N.D. California
• Decided: January 14, 2025
• Docket: 3:23-cv-00871
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL DEVIN FLOYD, Case No. 23-cv-00871-EMC

8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 10 24 HOUR FITNESS USA, LLC, 11 Defendant. Docket No. 66

12 13 14 Plaintiff Michael Devin Floyd, proceeding pro se, has filed suit against Defendant 24 Hour 15 Fitness USA, LLC (“24HF”). Mr. Floyd alleges that 24HF violated his rights by, inter alia, 16 having him removed from a gym on two different occasions and then terminating his gym 17 membership. Now pending before the Court is 24HF’s motion to dismiss the operative pleading 18 which is the first amended complaint (“FAC”). Having considered the parties’ briefs as well as 19 their oral argument at the hearing held on January 9, 2025, the Court hereby GRANTS in part and 20 DENIES in part the motion to dismiss. 21 I. FACTUAL & PROCEDURAL BACKGROUND 22 In the FAC, Mr. Floyd alleges as follows. 23 Mr. Floyd has been a member of 24HF since January 2022. See FAC, Ex. 1 (page 1). In 24 July 2022 and then in October 2022, there were two incidents in which Mr. Floyd was asked to 25 leave while he was working out at a 24HF gym in Hayward, California. 26 July 2022. According to Mr. Floyd, in July 2022, he was working out in the gym when 27 two men approached him. Mr. Floyd had never seen the men before even though he had been 1 The men informed Mr. Floyd that he had previously been banned from the gym based on multiple 2 complaints. When Mr. Floyd asked who complained and what the complaints were about, the 3 men refused to give him any information. See FAC, Ex. 2 (page 1). 4 Mr. Floyd told the men that he would not leave because they had not given him an 5 “explanation about why [he] was being kicked out of the gym. They informed [Mr. Floyd] that 6 they would call the police.” FAC, Ex. 2 (page 1). The men left, and Mr. Floyd continued to work 7 out. The police arrived about 10 minutes later. The police took Mr. Floyd to the front desk. Mr. 8 Floyd continued to ask the two men for information. See FAC, Ex. 2 (page 1). “After more 9 attempts at answers and [Mr. Floyd] accusing [the men] of not working at the [24HR] location, the 10 police requested that [Mr. Floyd] leave the premises.” FAC, Ex. 2 (page 1). Mr. Floyd showered, 11 got dressed, and left the locker room. Mr. Floyd asked why he was “being kicked out of the gym” 12 and was told that “multiple people over time have accused me of harassing them.” FAC, Ex. 2 13 (page 1). Mr. Floyd was not given any more specifics, including about what he had purportedly 14 done. See FAC, Ex. 2 (page 1). 15 October 2022. As alleged in the FAC, on October 1, 2022, Mr. Floyd went to the 24HF 16 gym in Hayward. After he finished working out, four people approached him in the locker room: 17 two police officers and two 24HF employees. One of the employees claimed that Mr. Floyd had 18 assaulted a woman (grabbing her bottom). The employee also claimed that there were prior 19 incidents in which other persons had complained about Mr. Floyd. The employee refused to give 20 Mr. Floyd any more details about either the current incident or the prior incidents and asked him 21 to leave. Mr. Floyd said he needed to shower first. The police officers then told Mr. Floyd that he 22 was trespassing and that he was under arrest. Mr. Floyd said he had to get dressed and gather his 23 belongings but the officers did not allow him to do so. The officers used force to handcuff Mr. 24 Floyd and escorted him, half naked, out of the gym. See FAC (Ex. 1, at 1-2). 25 Subsequently, Mr. Floyd tried to get information from 24HF about the complaints that had 26 been lodged against him. 24HF refused to give him more information. Eventually, on October 27 13, 2022, 24HF called Mr. Floyd and told him that he was no longer a member. See FAC (Ex. 1, 1 Based on, inter alia, the above allegations, Mr. Floyd has asserted twelve causes of action, 2 all based on state law.1 3 (1) Violation of § 17200. Mr. Floyd argues that he was not given fair accommodation 4 as a gym member and further asserts that he was denied a fair harassment policy. 5 See FAC at 6; see also FAC at 7 (maintaining that 24HF violated their contract and 6 that 24HF failed to have a “proper harassment policy”). 7 (2) Intentional infliction of emotional distress (“IIED”). Mr. Floyd contends that 24HF 8 intentionally inflicted emotional harm on him by not giving him information about 9 the claims being made against him, by not allowing him a chance to refute the 10 claims against him, by having the police remove him from the gym in July 2022 in 11 front of gym patrons “during the busiest hours of the evening,” and by forcing him 12 out of the locker room “half-naked” in October 2022. FAC at 9. 13 (3) Negligent infliction of emotional distress. Mr. Floyd alleges that 24HF negligently 14 caused him emotional harm because, e.g., it did not give him information about the 15 claims being made against him, demanded that he leave the gym without 16 showering, asked the police to arrest him for trespassing, and refused to allow him 17 to collect his belongings. See FAC at 10-11. 18 (4) Violation of California Civil Code § 1714. Section 1714(a) provides: “Everyone is 19 responsible, not only for the result of his or her willful acts, but also for an injury 20 occasioned to another by his or her want of ordinary care or skill in the 21 management of his or her property or person, except so far as the latter has, 22 willfully or by want of ordinary care, brought the injury upon himself or herself. . . 23

24 1 In his original complaint, Mr. Floyd asserted several federal causes of action but he dropped those claims in the FAC. In the FAC, Mr. Floyd maintains that, even though he is no longer 25 asserting federal claims, the Court still has subject matter jurisdiction because of diversity jurisdiction. According to Mr. Floyd, at the time he filed the original complaint, he was a resident 26 of Louisiana while 24HF is a citizen of California, and thus there was complete diversity. See FAC at 1-2; see also Rosado v. Wyman, 397 U.S. 397, 405 n.6 (1970) (stating that it is a “well- 27 settled rule that a federal court does not lose jurisdiction over a diversity action which was well 1 . The extent of liability in these cases is defined by the Title on Compensatory 2 Relief.”). Mr. Floyd suggests that 24HF violated § 1714 because it refused to give 3 him information about the claims being made against him and terminated his 4 membership. 5 (5) Failure to comply with the “Principal’s Duty of Protection.” FAC at 11. Mr. Floyd 6 asserts that 24HF “had a contractual obligation to protect [him] within the gym” 7 and failed to abide by this obligation because it conducted “[n]o type of 8 investigation whatsoever before the police were called,” did not give him any 9 information about the claims being made against him, and ultimately terminated his 10 gym membership. FAC at 11-12. 11 (6) Negligent training and supervision. Mr. Floyd suggests that 24HF is liable for 12 negligent training and supervision because the employees from the July and 13 October 2022 incidents “remained employees” after each incident. FAC at 13. 14 Also, there was no retraining of the employees afterward. See FAC at 13. 15 (7) Liability of a principal based on acts of agent/employee. Mr. Floyd asserts that 16 24HF is liable for the acts of its employees. 17 (8) False imprisonment/false arrest. Mr. Floyd contends that 24HF caused him to be 18 arrested for trespassing. See FAC at 15-16. 19 (9) Defamation/slander. Mr. Floyd claims that a 24HF employee defamed him by 20 telling two police officers that Mr. Floyd had “assaulted a woman by grabbing her 21 buttocks.” FAC at 16. 22 (10) Breach of the implied covenant of good faith and fair dealing. Mr. Floyd contends 23 that 24HF breached the implied covenant by failing to properly investigate the 24 allegations he had harassed someone. See FAC at 17. 25 (11) Breach of the implied duty to perform with reasonable care. Mr. Floyd asserts that 26 the parties’ contract required that 24HF “properly investigate claims of harassment 27 and any other member-member dispute.” FAC at 17. 1 by failing to properly investigate the allegations made against him and by 2 terminating his membership even though he did not violate any rules. See FAC at 3 18-19. 4 II. DISCUSSION 5 A. Legal Standard 6 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 8 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 9 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 10 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . 12 . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 13 1123, 1135 (9th Cir. 2014). “A claim has facial plausibility when the plaintiff pleads factual 14 content that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 16 probability requirement, but it asks for more than a sheer possibility that a defendant has acted 17 unlawfully.” Id. (internal quotation marks omitted). In evaluating the viability of a claim, a court 18 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light 19 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 20 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the 21 elements of a cause of action [and] must contain sufficient allegations of underlying facts to give 22 fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 23 (internal quotation marks omitted). 24 B. Count 4: Violation of California Civil Code § 1714 25 In Count 4, Mr. Floyd asserts a claim based on a violation of California Civil Code § 1714. 26 Section 1714 provides in relevant part as follows:

27 Everyone is responsible, not only for the result of his or her willful person, except so far as the latter has, willfully or by want of 1 ordinary care, brought the injury upon himself or herself. 2 Cal. Civ. Code § 1714(a). 24HF argues that the claim for violation of § 1714 should be dismissed 3 because a private right of action does not exist under the statute. The Court agrees. Plaintiff has 4 cited no authority indicating that the statute itself gives rise to a private cause of action. Cf. 5 Cabral v. Ralphs Groc. Co., 51 Cal. 4th 764, 768 (2011) (noting that § 1714(a) simply 6 “establishes the general duty of each person to exercise, in his or her activities, reasonable care for 7 the safety of others”). The statute may inform a tort cause of action for negligence, but Plaintiff 8 fails to establish this section provides for a statutory cause of action. The claim under Section 9 1714 is therefore dismissed with prejudice. See Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 10 F.3d 1082, 10986 (9th Cir. 2014) (stating that a “[a] complaint should not be dismissed without 11 leave to amend unless amendment would be futile”) (emphasis added). 12 C. Count 5: Failure to Comply with the “Principal’s Duty of Protection” 13 In Count 5, Mr. Floyd asserts a claim for failure to comply with the “Principal’s Duty of 14 Protection.” FAC at 11. The claim seems to be based on the Restatement of Agency, which Mr. 15 Floyd cites in his FAC. See FAC at 11 (citing Rest. 3d of Agency § 7.062). Mr. Floyd alleges that 16 24HF “had a contractual obligation to protect [him] within the gym” and failed to abide by this 17 obligation because it conducted “[n]o type of investigation whatsoever before the police were 18 called,” did not give him any information about the claims being made against him, and ultimately 19 terminated his gym membership. FAC at 11-12. 20 24HF moves to dismiss the claim as it is not a cause of action. 24HF is correct; the 21 Restatement does not establish any private right of action under California law. And while a 22 principal may be liable for the acts of an agent under some circumstances, the agency itself does 23 not create a legal claim. Therefore, the claim is dismissed with prejudice. To the extent Mr. Floyd 24 is arguing that 24HF did not comply with the contract between the parties, that is a claim for 25 breach of contract. 26 2 Section 7.06 states: “A principal required by contract or otherwise by law to protect another 27 cannot avoid liability by delegating performance of the duty, whether or not the delegate is an 1 D. Count 7: Liability of Principal Based on Acts of Agent/Employee 2 In Count 7, Mr. Floyd brings a claim for liability of a principal based on acts of 3 agent/employee. Essentially, Mr. Floyd asserts that 24HF is liable for the acts of its employees. 4 See FAC at 14 (citing Restatement of Agency).3 24HF moves to dismiss this claim because it is 5 not clear what kind of claim Mr. Floyd is trying to articulate here. The Court agrees with 24HF. 6 Mr. Floyd is simply articulating theories by which 24HF could be held liable for a tort of its 7 employees but he has failed to identify any underlying tort. Again, an agency principle does not in 8 itself create an independent cause of action. The Court therefore grants the motion to dismiss this 9 claim with prejudice. 10 E. Count 2: IIED 11 Count 2 is a claim for IIED. The elements for an IIED claim are as follows: “(1) defendant 12 engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of 13 decency in a civilized community) with the intent to cause, or with reckless disregard to the 14 probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe 15 emotional distress.” Berry v. Frazier, 90 Cal. App. 5th 1258, 1273 (2023). 16 In the FAC, Mr. Floyd contends that 24HF intentionally inflicted emotional harm on him 17 by not giving him information about the claims being made against him, by not allowing him a 18 chance to refute the claims against him, by having the police remove him from the gym in July 19 3 Mr. Floyd cites to both the Restatement (Second) on Agency, and the Restatement (Third). See 20 Rest. 2d of Agency § 219(1) (providing that “[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment”); Rest. 3d of Agency § 7.03 21 (addressing when a principal is subject to direct liability to a third party harmed by an agent’s conduct and when a principal is subject to vicarious liability). 22

Mr. Floyd also cites to additional sections of the Restatement (Third), but they are clearly 23 not on point as they address the liability of an agent, not the liability of a principal.

24 • Section 7.01 states: “An agent is subject to liability to a third party harmed by the agent's tortious conduct. Unless an applicable statute provides otherwise, an actor remains subject 25 to liability although the actor acts as an agent or an employee, with actual or apparent authority, or within the scope of employment.” Rest. 3d of Agency § 7.01. 26 • Section 7.02 states: “An agent's breach of a duty owed to the principal is not an independent basis for the agent's tort liability to a third party. An agent is subject to tort 27 liability to a third party harmed by the agent's conduct only when the agent's conduct 1 2022 in front of gym patrons “during the busiest hours of the evening,” and by forcing him out of 2 the locker room “half-naked” in October 2022. FAC at 9. According to Mr. Floyd, he was

3 traumatized by both incidents. I’ve abruptly lost many friends I connected with at 24 Hour Fitness and those supporting 4 relationships at the gym. Having already suffered through many other police brutality events, this event has added onto previous 5 traumas, and I feel even more unsafe when near police officers. I constantly fear every conversation I participate in can possibly result 6 in traumatic events like those at [24HF]. I am currently in and seeking professional counseling. So far, I have only found an online 7 support group and a life coach. 8 FAC at 20. 9 24HF argues that the IIED claim should be dismissed because Mr. Floyd has failed to 10 allege (1) extreme and outrageous conduct and (2) extreme or severe emotional distress. The 11 Court agrees with the first contention and therefore does not address the second. 12 Specifically, the Court holds that 24HF’s alleged failure to give Mr. Floyd more 13 information about the complaints against him and failure to give him a chance to tell his side of 14 the story does not constitute extreme or outrageous conduct. Here, Mr. Lloyd is essentially 15 contending that 24HF failed to conduct a proper investigation before it took action against him. 16 As a matter of law, this kind of failure is not conduct “so extreme as to exceed all bounds of that 17 usually tolerated in a civilized community.” Bock v. Hansen, 225 Cal. App. 4th 215, 233 (2014) 18 (internal quotation marks omitted). Mr. Floyd is not asserting that 24HF completely made up the 19 claims that other gym members had made complaints about him (although he asserts that the 20 harassment claims made by the members were not true).4 See Opp’n at 5. Nor is he asserting that 21 24HF did no investigation whatsoever. Compare Bohnert v. Roman Cath. Archbishop of S.F., 67 22 F. Supp. 3d 1091, 1099 (N.D. Cal. 2014) (rejecting defendant’s argument that plaintiff was 23 “‘merely unhappy about the promptness and effectiveness of the investigation’”; plaintiff alleged 24 that “defendants deleted incriminating photographs from students' phones, refused to investigate 25 4 At the hearing, Mr. Floyd suggested for the first time that no one had actually lodged a complaint 26 about him in October 2022. The FAC, however, does not contain any allegation that 24HF fabricated the October 2022 complaint. Furthermore, even if Mr. Floyd is now claiming 27 fabrication, that claim is speculative; it is not based on any concrete factual allegations. Mr. Floyd 1 or take corrective action, and failed to address past incidents of graphic ‘up-skirt’ photographs 2 which had been going on for at least three years,” and “[a] reasonable observer or trier of fact 3 could find these actions to be ‘outrageous,’ ‘extreme,’ and beyond ‘that usually tolerated in a 4 civilized society’”); Prasad v. Santa Clara Cnty. Dep't of Soc. Servs., No. 15-cv-04933-BLF, 2016 5 U.S. Dist. LEXIS 150750, at *7-8 (N.D. Cal. Oct. 28, 2016) (stating that, “[i]f Plaintiff can prove 6 that Defendants intentionally re-entered his name into the [Child Abuse Central Index] without a 7 [California Child Abuse and Neglect Report Act] hearing or without conducting any investigation, 8 he may be able to show that Defendants' conduct was outrageous”). To the extent Mr. Floyd 9 complains he should not have been ejected from the gym before a fuller investigation was done, in 10 view of the fact that 24HF had received complaints about Mr. Floyd’s harassment of other 11 members whose rights and interests could be jeopardized by Mr. Floyd’s continued presence, the 12 actions of 24HF, even if the investigation were not adequate, cannot be deemed extreme and 13 outrageous. Cf. Rincker v. Ill. Dep’t of Corr., No. 08-cv-1160, 2010 U.S. Dist. LEXIS 75206, at 14 *28 (C.D. Ill. July 26, 2010) (in case where employee sued employer for failure to respond to co- 15 worker harassment, noting that an employer’s “separation of the victim from the alleged harasser 16 can be an appropriate response to a claim of harassment”); see also Smith v. Rock-Tenn. Servs., 17 813 F.3d 298, 311 (6th Cir. 2016) (noting that an employee may sue their employer for failure to 18 address harassment by a co-worker and that “[e]ven separating the harasser and victim 19 immediately may not be enough without further action on the employer’s part”) (emphasis added). 20 The Court also agrees with 24HF that Mr. Floyd has not sufficiently alleged extreme and 21 outrageous conduct simply because, as alleged, 24HF had the police remove him from the gym in 22 July 2022 in front of gym patrons “during the busiest hours of the evening,” and forced him out of 23 the locker room “half-naked” in October 2022. Mr. Floyd refused to leave when directed to do so 24 by staff. He arguably then trespassed and recruiting the police to remove him was not extreme or 25 outrageous. There is nothing to indicate that 24HF deliberately timed the removal to humiliate 26 Mr. Floyd. As for October 2022, the allegations in the FAC indicate that it was the police’s 27 actions that led to Mr. Floyd being removed half naked after he refused to leave immediately. 1 outrageous conduct as a result of the police not affording Mr. Floyd and opportunity to shower and 2 dress in street clothes. 3 The Court therefore dismisses the claim for IIED. The dismissal is with prejudice as Mr. 4 Floyd has failed to show that he could amend the claim so that it would be viable. 5 F. Count 6: Negligent Training and Supervision 6 Count 6 is a claim for negligent training and supervision. In the FAC, Mr. Floyd suggests 7 that 24HF is liable for negligent training and supervision because the employees from the July and 8 October 2022 incidents “remained employees” after each incident. FAC at 13. Also, there was no 9 retraining of the employees afterward. See FAC at 13. 10 In its motion, 24HF argues that this negligence claim should be dismissed because Mr. 11 Floyd has fundamentally misunderstood what such a negligence claim is about. There must be 12 allegations that, because of a failure to train or supervise, the plaintiff was injured. Here, that 13 would mean, because 24HF failed to train or supervise, its employees treated Mr. Floyd 14 improperly in July and October 2022. 24HF notes that a claim for negligent training or 15 supervision often involves “an employer retaining an employee with a past history of 16 wrongdoing,” Mot. at 13, but Mr. Floyd has made no allegation that the employees involved with 17 the July and October 2022 incidents had a past history of wrongdoing. 18 In his opposition, Mr. Floyd implicitly recognizes there is some deficiency in his claim as 19 pled. He has recharacterized the claim, arguing that “[f]ailing to retrain after the first incident led 20 to the second incident. The actions after the second incident were acknowledged and approved by 21 management, who then decided to cancel my membership.” Opp’n at 7 (emphasis added). Even 22 if the Court accepts this new theory, it is problematic. The employees involved in the July and 23 October 2022 incidents were different. See Opp’n at 13 (stating that employees involved in the 24 July 2022 incident were “manager Martinez and employee Sanchez” and that employees involved 25 in the October 2022 incident were “manager Kane and employee Pratt”). Thus, this is not a case 26 where 24HF employees allegedly acted improperly in July 2022 and should have been retrained 27 but were not, which then led the same employees to engage in the same kind of misconduct again 1 there is nothing to suggest that their conduct was so problematic or part of a pattern or practice of 2 improper conduct such that 24HF was put on notice that it should provide better training or 3 supervision – i.e., such that its failure to act was part of the reason why employees acted 4 improperly in October 2022. Notably, Mr. Floyd contends what happened in October 2022 5 differed in some ways from the July 2022 incident where he was permitted to shower and then 6 leave. 7 Therefore, the Court grants the motion to dismiss the claim for negligent training and 8 supervision. The dismissal is with prejudice based on futility (i.e., even Mr. Floyd’s new theory as 9 articulated in the opposition brief is problematic). 10 G. Count 8: False Imprisonment/False Arrest 11 Count 8 is a claim for false imprisonment/false arrest. Mr. Floyd contends that 24HF 12 caused him to be arrested for trespassing. This is for the October 2022 incident only. See FAC at 13 15-16 (alleging that a 24HF manager “walked into the locker room and demanded the Plaintiff 14 leave [the] gym, claiming harassment of its customer,” and then “ordered the police to arrest the 15 Plaintiff for trespassing to not allow the Plaintiff to finish clothing himself within the locker 16 room”); FAC, Ex. 1 (page 1) (alleging that “[t]he unknown man [wearing a 24HF badge] asked me 17 to leave,” that “I told him that I need to take a shower first,” that “[t]he unknown male refused this 18 request,” and that “the officers told me that I am trespassing and told me that I am under arrest”). 19 A private citizen can be held liable for a false arrest. As Mr. Floyd points out, there is a 20 CACI jury instruction reflecting such:

21 [Name of plaintiff] claims that [he/she/nonbinary pronoun] was wrongfully arrested by [name of defendant]. To establish this claim, 22 [name of plaintiff] must prove all of the following:

23 1. That [name of defendant] intentionally caused [name of plaintiff] to be arrested without a warrant; [and] 24 2. That [name of plaintiff] was [actually] harmed; and 25 3. That [name of defendant]’s conduct was a substantial factor 26 in causing [name of plaintiff]’s harm.

27 [A private person does not need to physically restrain a suspect in and pointing out the suspect.] 1 CACI 1403. 2 While CACI 1403 sets forth the elements of such a claim for false arrest, the next jury 3 instruction – CACI 1404 – provides for an affirmative defense to such a claim. 4 [Name of defendant] claims the citizen’s arrest was not wrongful 5 because [he/she/nonbinary pronoun] had the authority to cause [name of plaintiff] to be arrested without a warrant. 6 [If [name of defendant] proves that [name of plaintiff] committed or 7 attempted to commit a crime in [name of defendant]’s presence, then the arrest was lawful.] 8 [or] 9 [If [name of defendant] proves that a felony was committed and that 10 [insert facts, that if proved, would establish that defendant had reasonable cause to believe that plaintiff had committed a felony], 11 then the arrest was lawful.] 12 CACI 1404. 13 In its motion to dismiss, 24HF essentially argues that the claim for false arrest should be 14 dismissed because the arrest was not false: Mr. Floyd engaged in trespassing by not leaving when 15 asked (as alleged in the FAC). Although 24HF has tried to frame this argument as one of 16 causation, see Mot. at 15 (asserting that 24HF’s “employee did not cause Plaintiff’s arrest [but] 17 [r]ather, Plaintiff did”), 24HF is really arguing for dismissal based on an affirmative defense – i.e., 18 no wrongful arrest. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) 19 (noting that an affirmative defense that appears on the face of a pleading can be the basis for a 20 dismissal under Rule 12(b)(6)). 21 As for the merits of 24HF’s argument, the Court first takes stock of what exactly Mr. 22 Floyd was arrested for. 24HF has provided a copy of the police case report. See RJN, Ex. G (case 23 report). The report reflects that Mr. Floyd was arrested for two offenses: (1) trespass of real 24 property, a violation of California Penal Code § 602, and (2) resisting, delaying, or obstructing a 25 peace officer, a violation of California Penal Code § 148(a)(1). The Court disregards the second 26 offense as there is no indication that Mr. Floyd seeks to hold 24HF liable for false arrest based on 27 that offense. 1 following acts is guilty of a misdemeanor.” Cal. Pen. Code § 602. The police case report 2 indicates that the police arrested Mr. Floyd based on § 602(m) specifically:

3 The employee advised Floyd to leave the premises because he violated gym policies; however, Floyd refused to leave and began 4 approaching the employee as if he was going to assault him physically. Officer Sawyer and I intervened and advised Floyd to 5 leave. Floyd refused to leave, and the reporting party stated he wanted to place Floyd under citizen’s arrest for trespassing. Due to 6 the reporting party being employed by 24-hours fitness [sic], asking Floyd to leave, and Floyd refusing, he violated 602(m). 7 8 RJN, Ex. G (Report at 4). Section 602(m) defines the following as trespassing: “Entering and 9 occupying real property or structures of any kind without the consent of the owner, the owner’s 10 agent, or the person in lawful possession.” Cal. Pen. Code § 602(m). 11 As noted above, CACI 1404 provides that an arrest was not unlawful if the defendant 12 proves that that the plaintiff committed (or attempted to commit) a crime in the defendant’s 13 presence. See CACI 1404. Although that is a relatively high standard, 24HF has a meritorious 14 argument that, based on the allegations in the FAC, Mr. Floyd did commit the offense of 15 trespassing: as alleged, he was asked to leave private property and did not do so. (As alleged in 16 the FAC, Mr. Floyd stated he wanted to take a shower first.) Mr. Floyd does not cite any authority 17 suggesting that 24HF could revoke its consent to his presence in the gym (for purposes of trespass 18 law) only if it had a valid basis to revoke. Cf. See Cohodes v. MiMedx Grp., Inc., No. 22-cv- 19 00368-RFL, 2024 U.S. Dist. LEXIS 181477, at *18 (N.D. Cal. Sept. 24, 2024) (noting that the 20 interest that “the tort of trespass protects [is] the ownership or possession of land”). Moreover, 21 even if there were such a requirement, here, the allegations of the FAC establish that 24HF had a 22 basis to revoke that permission: a gym member had complained he had touched her 23 inappropriately, and Mr. Floyd has not alleged that 24HF knew or should have known that the 24 complaint was not real. Mr. Floyd cites no similar case where a court has held an owner cannot 25 revoke permission. 26 Accordingly, the Court grants the motion to dismiss the claim for false 27 imprisonment/arrest. The dismissal is with prejudice as the claim is futile based on the allegations 1 avoid dismissal. 2 H. Count 9: Defamation/Slander 3 In Count 9, Mr. Floyd claims that a 24HF employee defamed him by telling two police 4 officers that Mr. Floyd had “assaulted a woman by grabbing her buttocks.” FAC at 16. 24HF 5 moves to dismiss the claim on the basis that the employee’s statement was privileged under 6 California Civil Code § 47. Section 47(b) states in relevant part that

7 [a] privileged publication or broadcast is one made:

8 . . .

9 (b) In any (1) legislative, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or 10 course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of 11 Part 3 of the Code of Civil Procedure [addressing writs of mandate] . . . . 12 13 Cal. Civ. Code § 47(b) (emphasis added). See, e.g., Devis v. Bank of Am., 65 Cal. App. 4th 1002, 14 1007-08 (1998) (stating that “reports made by citizens to police regarding potential criminal 15 activity are communications [that] fall within the section 47 privilege”; such a communication is 16 part of an official proceeding just as much as a communication made after an official investigation 17 has commenced). 18 The subsection, however, “does not make privileged any communication between a person 19 and a law enforcement agency in which the person makes a false report that another person has 20 committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law 21 enforcement intervention, knowing that the report is false, or with reckless disregard for the truth 22 or falsity of the report.” Id. (fifth exception to § 47(b)) (emphasis added); cf. id. § 47(c) 23 (providing that a publication is privileged if made “[i]n a communication, without malice, to a 24 person interested therein, (1) by one who is also interested”). 25 In his opposition, Mr. Floyd argues that the 24HF employee spoke with reckless disregard 26 for the truth or falsity of the gym member’s complaint about him. “Accepting the accusation of 27 the ‘accuser’ without any further questioning is a reckless disregard for the truth . . . .” Opp’n at 7. 1 be identified” by 24HF. Opp’n at 8. 2 Although Mr. Floyd’s position is not entirely without merit, the Court still grants the 3 motion to dismiss the claim. The Court cannot say that the 24HF employee acted with reckless 4 disregard because, as alleged, the information he had before him was that (1) a woman had 5 complained about Mr. Floyd grabbing her bottom and (2) there were prior incidents in which 6 customers had complained about Mr. Floyd. See FAC, Ex. 1 (page 1) (“The unknown man 7 wearing a 24 Hour Fitness badge stated that I assaulted someone. . . . [H]e said that I grabbed a 8 woman’s ass and she reported this. . . . [¶] The unknown man then stated there were multiple other 9 incidents prior to this incident where people complained about me.”). There are no allegations 10 that the 24HF knew or should have known that the complaints against Mr. Floyd were not 11 substantiated in any way. Mr. Floyd does not allege with specificity facts which establish such 12 knowing falsity or reckless disregard for the truth. See generally Iqbal, 556 U.S. at 662 (2009); 13 Twombly, 550 U.S. at 544. Mr. Floyd has had sufficient opportunities to make any such 14 allegations in his prior complaints. 15 The Court therefore dismisses the claim with prejudice. 16 I. Count 3: Negligent Infliction of Emotional Distress 17 In his claim for negligent infliction of emotional distress (“NIED”), Mr. Floyd alleges that 18 24HF negligently caused him emotional harm because, e.g., it did not give him information about 19 the claims being made against him, demanded that he leave the gym without showering, asked the 20 police to arrest him for trespassing, and refused to allow him to collect his belongings. See FAC 21 at 10-11. 24HF argues that the NIED claim should be dismissed because it is simply a claim for 22 negligence, see Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993) (stating that 23 “there is no independent tort of negligent infliction of emotional distress[;] [t]he tort is 24 negligence”), and Mr. Floyd has failed to plead all of the elements of a negligence claim – in 25 particular, the element of duty. See Mot. at 11. 24HF asserts:

26 there are no facts alleged that 24 Hour Fitness owed Plaintiff a duty under the circumstances of this case where Plaintiff was repeatedly 27 accused of harassing and touching gym members. In his opposition, of 24 Hour Fitness. Other than being a contracted gym member of 1 24 Hour Fitness, Plaintiff fails to include any facts to support what “special relationship” created a duty under these circumstances. 2 Instead, Plaintiff states as a legal conclusion that a duty was owed, without any support, and the Court may not assume the truth of such 3 conclusions. 4 Reply at 4. 5 Duty is a question of law for a court to decide, see Kesner v. Superior Court, 1 Cal. 5th 6 1132, 1142 (2016), but a court’s decision can turn on the underlying facts of the case. See 7 Bararsani v. HDI Global Ins. Co., No. CV 21-3679 PA (SHKx), 2021 U.S. Dist. LEXIS 215951, 8 at *3 (C.D. Cal. Nov. 5, 2021) (indicating that a negligence claim fails if a plaintiff does not allege 9 facts establishing a legal duty). “Whether a particular defendant owes a particular plaintiff a legal 10 duty of care (actionable in a claim for negligence) is, at bottom, a ‘question of public policy’ – 11 namely, should that plaintiff's interests be entitled to legal protection against the defendant's 12 conduct?” Shalghoun v. North Los Angeles County Regional Center, Inc., 99 Cal. App. 5th 929, 13 943 (2024). 14 The Court holds that, in the case at bar, the issue of legal duty cannot be decided at the 15 12(b)(6) phase and is more appropriately analyzed through the lens of summary judgment which is 16 predicated on a factual record. The existence of a legal duty is not implausible based on the 17 allegations in the FAC. Section 1714(a) (discussed above) provides a potential basis for a legal 18 duty. See Shalghoun, 99 Cal. App. 5th at 943 (noting that “a person has a legal duty to act 19 reasonably and with due care under the circumstances with respect to their own actions,” which 20 arises from § 1714(a)). If the investigation were inadequate (in part because 24HF failed to give 21 Mr. Floyd an adequate opportunity to answer the claims of harassment) and thus 24HF had no 22 cause to eject him and to do so on an argent basis, the harm to Mr. Floyd would be foreseeable. 23 To be sure, the existence of a duty may be informed by public policy considerations that 24 warrant limiting that legal duty. See id. at 946. Those considerations are known as the Rowland 25 factors and fall into two categories.

26 The first category examines the foreseeability of the plaintiff's injury. Rowland identifies three foreseeability considerations: (1) 27 whether “‘“the category of negligent conduct at issue is sufficiently plaintiff suffered injury; and (3) the closeness of the connection 1 “‘between the defendant's conduct and the injury suffered.’” 2 Id. 3 The second category

4 ask[s] whether “‘the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to 5 outweigh the compensatory and cost-internalization values of negligence liability.’” In other words, they ask whether recognizing 6 the duty “would deter socially beneficial behavior.” [These] countervailing policy considerations are: (1) the moral blame 7 attaching to the defendant's conduct, which is “typically found when the defendant reaps a financial benefit from the risks it has created”; 8 (2) whether liability will “‘prevent[] future harm,’” which looks to “both the positive and the negative societal consequences of 9 recognizing a tort duty” in terms of how the imposition of liability is likely to play out; (3) the “‘extent of the burden to the defendant and 10 consequences to the community of imposing a duty . . . . with resulting liability for breach,’” including whether recognizing tort 11 liability “would impose enormous and unprecedented financial burdens” on likely defendants; and (4) the availability of insurance. 12 13 Id. at 947. 14 24HF’s position does not address the legal analysis of duty as laid out above. Some of the 15 public policy considerations in the first category arguably weigh in Mr. Floyd’s favor. More 16 important, however, the public policy considerations in the second category need to be evaluated – 17 in this case at least – based on a factual record. If, for example, the 24HF employees were 18 informed that Mr. Floyd had engaged in serious and/or repeated problematic conduct, then it is 19 more likely that 24HF did not owe Mr. Floyd a legal duty to refrain from seeking his immediate 20 removal from the premises. Alternatively, even if a duty were found, 24HF’s conduct based on 21 the circumstances might be found reasonable and not negligent. The fact that the Court finds the 22 conduct could not have been deemed extreme and outrageous as required to state a claim for IIED 23 does not preclude a claim for negligence. 24 Accordingly, the Court denies the motion to dismiss Mr. Floyd’s NIED/negligence claim. 25 The Court’s ruling here does not preclude 24HF from arguing, in a summary judgment motion, 26 that there are no facts to support a legal duty owed to Mr. Floyd or negligence. 27 1 J. Counts 12, 10, and 11: Breach of Contract, Breach of the Implied Covenant of Good Faith 2 and Fair Dealing, and Breach of the Implied Duty to Perform with Reasonable Care 3 In Counts 10-12, Mr. Floyd essentially asserts contract-based claims. For these counts, 4 Mr. Floyd’s basic contention is that 24HF (1) failed to properly investigate and (2) improperly 5 terminated his membership even though he did not violate any rules. 24HF moves to dismiss the 6 claims on the basis that they are contrary to the terms of the parties’ contract of which it asks the 7 Court to take judicial notice.5 8 A copy of the parties’ contract – i.e., the membership agreement – can be found at Exhibit 9 A attached to 24HF’s request for judicial notice (“RJN”). The relevant terms of the contract are as 10 follows: 11 • “[Y]ou agree that by signing this Agreement, you purchased a membership or 12 services, agree to all the terms in this Agreement, and agree to follow 24 Hour’s 13 Membership Policies and any Rules.” RJN, Ex. A (Agreement ¶ 1). 14 • “24 Hour may, at its option, terminate your member if . . . (5) you fail to follow 15 any of 24 Hour’s Membership Policies or club Rules or violate any part of this 16 Agreement, or (6) your conduct is improper or harmful to the best interest of 24 17 Hour or its members.” RJN, Ex. A (Agreement ¶ 6(f)). 18 As indicated above, the parties’ contract refers to Membership Policies and Club Rules 19 (“Policies”). Those are attached as Exhibit B to 24HF’s RJN. The Policies state in relevant part 20 that “[y]ou agree to follow the Policies and Rules” and that,

21 [w]hile in 24 Hour facilities, 24 Hour does not permit and will not tolerate any inappropriate conduct. You may not engage in any 22 conduct in any 24 Hour facility that includes, without limitation, using loud, abusive, offensive, insulting, demeaning language, 23 profanity, lewd conduct or any other conduct that harasses or is bothersome to members, guests or employees. 24 VIOLATION OF POLICIES OR RULES: If any member or 25 guest violates any of the Policies or Rules, 24 Hour will ask that 26 5 24HF has also asked the Court to take judicial notice of conflicts that Mr. Floyd has had with 27 other gyms (e.g., Planet Fitness, American Barbell). Those conflicts are not relevant to the case at person to stop or leave. A member’s violation of any of the Policies 1 or Rules may also cause 24 Hour, in its sole discretion, to terminate that person’s membership and/or other agreements. 2 3 RJN, Ex. B (Policies at 1). 4 Contrary to what 24HF argues, the membership agreement and policies on their face do not 5 preclude the contract-based claims from moving forward. Although 24HF had the right to 6 terminate his membership if, e.g., he violated 24HF’s Policies, it is a disputed fact as to whether 7 Mr. Floyd violated the Policies (i.e., engaged in harassing conduct). Although the Policies provide 8 that 24HF has the “sole discretion” to terminate a membership, that sole discretion is implicated 9 only if a member has violated the Policies. Neither the Policies nor the membership agreement 10 states that 24HF has “sole discretion” to decide whether a violation of the Policies or agreement 11 occurred in the first place. Thus, Mr. Floyd has alleged he did not violate the Policies, and that 12 issue cannot be decided by a motion to dismiss. Moreover, even though the agreement does not 13 set forth a procedural right with respect to an investigation into allegations of a Policy violation by 14 a member, Mr. Floyd may legally assert that 24HF breached the implied covenant of good faith 15 and fair dealing or implied duty to perform with reasonable care by not conducting a more fulsome 16 investigation. See, e.g., CACI 328 (“The parties’ contract requires that [name of defendant] 17 [specify performance alleged to have been done negligently, e.g., install cable television service]. 18 It is implied in the contract that this performance will be done competently and with reasonable 19 care. [Name of plaintiff] claims that [name of defendant] breached this implied condition.”). 20 The Court therefore denies the motion to dismiss the claim for breach of contract and the 21 claim for breach of the implied covenant and breach of the implied duty. Again, this does not 22 foreclose examination upon a motion for summary judgment based on a factual record. 23 K. Count 1: Violation of § 17200 24 Section 17200 prohibits unlawful, unfair, and/or fraudulent business acts or practices. In 25 the FAC, Mr. Floyd asserts that 24HF violated § 17200 because he was not given fair 26 accommodation as a gym member and because he was denied a fair harassment policy. See FAC 27 at 6; see also FAC at 7 (maintaining that 24HF violated their contract and that 24HF failed to have 1 unfair prong of § 17200. 2 In his opposition brief, Mr. Floyd adds more information about the claim of unfair business 3 acts or practices: (1) for the July 2022 incident, he was not told of what his alleged misconduct 4 was specifically, when it took place, and who reported it; and (2) for the October 2022 incident, 5 24HF did not tell him about the problem when it occurred but rather chose to confront him after it 6 had called the police and demanded that he leave “over allegations unsupported by evidence.” 7 Opp’n at 5. Thus, the gist of Mr. Floyd’s § 17200 claim is that 24HF did not properly investigate, 8 including by giving him an opportunity to defend himself. 9 24HF’s arguments for dismissal of the § 17200 claim are not persuasive. 24HF does not 10 contend that §17,200 generally does not apply. Instead, it suggests that it did tell Mr. Floyd about 11 what his misconduct was in July 2022, but Mr. Floyd’s point is that 24HF simply said he had 12 engaged in harassment without providing any more specifics. See FAC, Ex. 2 (“They informed 13 me that multiple people over time have accused me of harassing them. I asked them what I did. 14 They informed me that they could not tell me.”). Ultimately, it is a question of fact as to whether 15 24HF treated him fairly – i.e., did an adequate investigation before asking him to leave the gym, 16 calling the police, and/or terminating his membership. Thus, the motion to dismiss the § 17200 17 claim is denied. 18 The Court notes that 24HF does not make any argument that Mr. Floyd’s § 17200 claim is 19 problematic to the extent he may be seeking damages as relief. The Court notes, however, that 20 only restitution rather than damages is available under § 17,200. But even if 24HF had made that 21 argument, that still would not dispose of the § 17200 claim in its entirety because Mr. Floyd also 22 seeks injunctive relief: specifically, he is asking that his gym membership “be reinstated.” FAC at 23 21. 24 / / / 25 / / / 26 / / / 27 / / / 1 Il. CONCLUSION 2 For the foregoing reasons, the Court grants in part and denies in part the motion to dismiss. 3 All claims are dismissed — with prejudice — except for (1) the NIED/negligence claim and (2) the 4 || claims for breach of contract and breach of the implied covenant and breach of the implied duty. 5 This order disposes of Docket No. 66. 6 7 IT IS SO ORDERED. 8 9 Dated: January 14, 2025 10 11 EDWARD #9CHEN 12 United States District Judge

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