Filed 6/17/26 Klein v. Trader Joe’s Co. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JASON-BRETT KLEIN, B343166
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 23VECV04868)
TRADER JOE’S COMPANY et
al.,
Defendants and
Respondents.
APPEALS from orders and a judgment of the Superior
Court of Los Angeles County, Huey Cotton, Jr., Judge. Dismissed
in part; affirmed in part.
Jason-Brett Klein, self-represented litigant, for Plaintiff
and Appellant.
Horvitz & Levy, Justin R. Sarno and Jeremy B. Rosen;
McLean, Vasquez, Place & Fabrega and Kristin A. Mathis for
Defendants and Respondents.
I. INTRODUCTION
Plaintiff Jason-Brett Klein appeals from an order granting,
in part, defendants’1 special motion to strike pursuant to Code of
Civil Procedure section 425.16, also known as the anti-SLAPP
statute;2 a judgment of dismissal following the sustaining of
defendants’ demurrer to his first amended complaint; and an
award of attorney fees. We dismiss the appeal from the order
granting, in part, defendants’ anti-SLAPP motion as untimely.
We otherwise affirm the judgment and order awarding attorney
fees.
1 Defendants are Trader Joe’s Company, Nikki Schrader, a
store manager, and Nicola Lane Barton, an assistant manager.
2 Further statutory references are to the Code of Civil
Procedure unless otherwise indicated. “‘SLAPP’ is an acronym
for ‘strategic lawsuit against public participation.’” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.)
2
II. BACKGROUND
A. Underlying Facts3
On March 18, 2021, after plaintiff entered the Trader Joe’s
store located at 14119 Riverside Drive in Sherman Oaks,
California, he was approached by defendant Schrader and told
that if he did not wear “an optional medical device known as a
‘face-mask’ or ‘mask’” (mask) and wished to shop at the store, he
would need to use a shopping cart “with a flag and sign on it”
3 “Because we are reviewing the trial court’s ruling on a
demurrer to an operative pleading, our recitation of the factual
background of this matter is derived from the allegations set
forth in that pleading.” (Tenet Healthsystem Desert, Inc. v. Blue
Cross of California (2016) 245 Cal.App.4th 821, 826, fn. 4.) “We
also consider matters shown in exhibits attached to the complaint
and incorporated by reference. [Citation.] ‘[T]o the extent the
factual allegations conflict with the content of the exhibits to the
complaint, we rely on and accept as true the contents of the
exhibits.’” (Performance Plastering v. Richmond American Homes
of California, Inc. (2007) 153 Cal.App.4th 659, 665.) Plaintiff’s
complaint incorporated by reference an exhibit listing internet
addresses for YouTube videos that purportedly documented some
of the incidents alleged in the complaint. Plaintiff, however, did
not submit copies of the videos; nor would such evidence be
appropriate as an exhibit to a complaint. (See § 425.10
[complaint shall contain “statement of the facts” and “demand for
judgment”]; Cal. Rules of Court, rules 2.100–2.119 [prescribing
form and format of papers filed with trial court].) We will accept
the allegations in the complaint as true without considering
whether any portions of the videos conflict with such allegations.
3
(special cart).4 Plaintiff declined to use a mask and explained to
Schrader that he had a “‘medical’” exemption. Other employees
“wearing masks and carrying box-cutters on their hips”
surrounded plaintiff, who “feared for his safety.” Plaintiff
advised Schrader that he felt “‘threatened.’” When plaintiff
asked Schrader about the employees’ conduct, Schrader
explained, “‘There’s just a process we have to follow.’” Schrader
informed plaintiff that if plaintiff used the special cart, the
employees would “‘stop doing what they were doing.’” Under
“threat and duress,” plaintiff accepted the use of the special cart.
In order to “avoid another incident and further trauma,”
and under duress, on two occasions in March 2021, plaintiff
entered the store and requested use of the special cart. On those
occasions, he shopped “without incident.”
On April 5, 2021, a Trader’s Joe employee advised plaintiff
that unless he wore a mask, he would not be allowed inside the
store without the special cart. That employee closed the store
door in order to block plaintiff’s entry, which caused other
shoppers outside to yell at plaintiff. After plaintiff persuaded the
employee to open the door so that a shopper inside could exit,
plaintiff successfully walked past the employee and into the
store, where he was provided the special cart by another
employee. The employee who initially prevented plaintiff from
entering the store told plaintiff, “‘Now you can shop!’”
On April 19, 2021, plaintiff entered the store and requested
the special cart from an employee. As he was waiting for the
4 California, at the time alleged in the complaint, was
experiencing the COVID-19 pandemic. (See, e.g., 640 Tenth, LP
v. Newsom (2022) 78 Cal.App.5th 840, 849–851 [describing
COVID-19 pandemic and Governor’s emergency orders].)
4
special cart, he was “detained” by employees who told him they
believed he was not allowed into the store because he had
“‘cursed at, and threatened other customers.’” Schrader then told
plaintiff that he was not allowed to shop at the store “‘[b]ecause
[he was] not following “the Process” and [plaintiff] cursed at
several of [the] other customers.’” Schrader and other employees
asked plaintiff to leave; and, after Schrader asked another
employee to “‘call the police,’” plaintiff left the store.
On April 29, 2021, plaintiff mailed to, among others, the
chief executive officer of Trader Joe’s and Schrader an “Affidavit
of Status” and “Affidavit of Facts.” (Capitalization and italics
removed.) The Affidavit of Status stated, among other things,
that plaintiff was “a creation of God-Almighty and a follower of
God’s laws first and foremost, and the laws of man when they are
not in conflict (Leviticus 18:3,4).” The “Affidavit of Facts” stated
that “wearing a ‘face-mask’ or ‘face-covering’ is an abomination
against the glory of God-Almighty, and against [plaintiff’s]
sincere religious conviction.”
On May 22, 2021, plaintiff returned to the store and
shopped without having to use the special cart. He then shopped
at the store on several other occasions, without being required to
use the special cart and without incident.
On June 6, 2021, as plaintiff exited the store after
completing his shopping, he was approached by defendant Barton
and another employee. Barton told plaintiff that it was her
understanding that plaintiff was not allowed to shop at the store
because he “‘harasses customers and employees.’” Plaintiff
denied the accusation.
On June 27, 2021, plaintiff again shopped at the store. He
was approached by Barton and another person, who told him that
5
he was not allowed to shop at the store because he had harassed
other customers and employees. Plaintiff denied the allegation.
On July 3, 2021, after plaintiff completed his shopping at
the store and was in the process of exiting, he was met at the exit
by Barton and two other employees. Barton told plaintiff that
“‘the management team’” had decided that plaintiff was not
allowed to shop at the store because he “‘harasses customers and
employees.’” Plaintiff denied the allegation, advised defendants
that they could not discriminate against him, and told the group
to stop harassing him.
On July 11, 2021, Barton and another employee again
stopped plaintiff as he exited the store. They told plaintiff that
he was not allowed to shop at the store and plaintiff responded by
accusing them of harassment and calling the police. Police
responded to plaintiff’s call but refused to charge Barton and the
employee.
On January 6, 2022, as plaintiff shopped at the store, he
got into an argument with “a few customers” who were upset that
plaintiff was not wearing a mask. When an employee offered
plaintiff the use of a mask, plaintiff “declined [the employee’s]
unlicensed medical advice.”
On February 2, 2022, an employee at a store register
refused to provide checkout services to plaintiff because plaintiff
was not wearing a mask.
On April 19, 2022, after plaintiff completed his shopping at
the store, Barton and another employee again approached
plaintiff and informed him that he was not allowed to shop at the
store because of his harassment of customers and employees.
Had plaintiff worn a mask in March 2021, April 2021, and
6
February 2022, plaintiff would not have had the interaction with
Barton and the other employee.
On May 12, 2022, upon entering the store, plaintiff was
approached by Barton and another employee who informed him
that he was not allowed to shop because of his harassment of
customers and employees. The employees followed plaintiff
around the store and refused to check out his items. Barton told
plaintiff that she could take the groceries out of his hands.
Plaintiff called the police, who responded and informed plaintiff
that the Trader Joe’s employees had accused him of harassing
customers and employees. The officers refused to charge Barton
or other employees with stalking and harassment. After further
interactions with employees who declined to check plaintiff out,
plaintiff eventually purchased his groceries.
On June 13, 2022, plaintiff spoke with a regional manager
who told plaintiff that he was not allowed at the store because of
his harassing conduct.
On June 14, 2022, Trader Joe’s filed a petition for a
workplace violence restraining order against plaintiff. On July 7,
2022, plaintiff was served with the petition. On November 1,
2022, a trial court conducted a hearing on the petition and
advised Trader Joe’s of “needed but missing elements of their
petition and cause.” On November 2, 2022, the court dismissed
the petition.
B. Complaint, Motion to Show Authority, and Motion to
Disqualify Judge
On November 1, 2023, plaintiff filed a complaint against
defendants, alleging eight causes of action. On December 12,
7
2023, Trader Joe’s filed a demurrer to the complaint and, on
December 22, 2023, Schrader and Barton filed joinders to the
demurrer. Plaintiff opposed the demurrer and the joinder of
Schrader and Barton.
On December 18, 2023, plaintiff filed a motion to “show
authority.” He argued that defendants’ counsel was required to
show that she had legal authority to act on behalf of defendants.
On February 7, 2024, Plaintiff moved to recuse the trial
court judge “for cause” pursuant to section 170.1, arguing that
the court’s tentative ruling denying the motion demonstrated the
judge’s bias. On February 8, 2024, the court struck the
statement of disqualification pursuant to section 170.4,
subdivision (b).
On February 28, 2024, the trial court conducted a hearing
on the demurrer and motions. Following argument, the court
denied plaintiff’s motion to show authority and sustained the
demurrer with leave to amend, except as to the slander cause of
action, which the court sustained without leave to amend.5
C. First Amended Complaint
On March 22, 2024, plaintiff filed his first amended
complaint, the operative pleading, which included attached
exhibits. Plaintiff alleged seven causes of action: the first cause
of action (against Trader Joe’s and Schrader) alleged defendants
denied plaintiff equal access and services in violation of the
Unruh Civil Rights Act (Civ. Code, § 51 et seq., Unruh Act); the
second cause of action (against Trader Joe’s and Schrader)
alleged that defendants interfered with plaintiff’s individual
5 Plaintiff does not challenge this ruling on appeal.
8
rights in violation of the Tom Bane Civil Rights Act (Civ. Code,
§ 52.1); the third cause of action (against Trader Joe’s and
Schraeder) alleged that defendants intentionally threatened
violence against plaintiff, in violation of the Ralph Civil Rights
Act of 1976 (Civ. Code, § 51.7; Ralph Act); the fourth cause of
action (against Trader Joe’s and Barton) alleged that defendants
engaged in stalking, in violation of Civil Code section 1708.7; the
fifth cause of action (against Trader Joe’s and Barton) alleged
defendants engaged in a malicious prosecution; the sixth cause of
action (against Trader Joe’s and Barton) alleged defendants
engaged in an abuse of process; and the seventh cause of action
(against Trader Joe’s and Barton) alleged intentional infliction of
emotional distress.
On March 27, 2024, plaintiff moved for reconsideration of
the trial court’s order denying his motion to show authority. On
May 7, 2024, the court denied the motion.
D. Anti-SLAPP Motion
On January 4, 2024, defendants filed an anti-SLAPP
motion, seeking to strike the entirety of plaintiff’s complaint.
Plaintiff opposed the motion and defendants filed a reply.6
On May 7, 2024, the trial court granted defendants’ anti-
SLAPP motion, in part, striking the causes of action for malicious
prosecution and abuse of process in their entirety, and portions of
6 Although defendants’ reply was filed after plaintiff had
amended his complaint, the anti-SLAPP motion was not rendered
moot because the amended complaint contained the same
allegations as the original complaint of protected activity related
to defendants’ restraining order petition.
9
the remaining causes of action that “rely on [d]efendants’ petition
for a restraining order against [p]laintiff.”
E. Demurrer to First Amended Complaint
On April 17, 2024, defendants filed a demurrer to the first
amended complaint, arguing that each of plaintiff’s causes of
action failed to state a claim for relief.
On May 17, 2024, plaintiff opposed the demurrer.
Defendants filed a reply.
On July 12, 2024, the trial court sustained the demurrer
without leave to amend. On October 8, 2024, the trial court
issued its judgment of dismissal of the entire action.
F. Motion for Attorney Fees
On June 12, 2024, defendants filed a motion for attorney
fees pursuant to section 425.16, subdivision (c) and requested an
award of $29,322.34. On July 9, 2024, plaintiff filed his
opposition to the motion for attorney fees, arguing that the court
erred when it granted the anti-SLAPP motion.
On July 12, 2024, the trial court granted the motion for
attorney fees, but awarded a lesser amount, $12,500, than had
been requested by defendants.
G. Notice of Appeal
On December 5, 2024, plaintiff filed his notice of appeal,
stating that he was appealing from judgments or orders dated,
among others, February 28, May 7, July 12, and October 7 and 8
of 2024.
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III. DISCUSSION
A. Anti-SLAPP Motion
Plaintiff contends that the trial court erred when it
granted, in part, defendants’ anti-SLAPP motion. Because
plaintiff’s appeal is untimely, we do not consider the merits of his
arguments.
“‘An order granting or denying a special motion to strike
[under the anti-SLAPP statute] shall be appealable under Section
904.1.’ (§ 425.16, subd. (i); see generally § 425.16 et seq.) Section
904.1 provides ‘[a]n appeal … may be taken … [¶] … [¶] …
[f]rom an order granting or denying a special motion to strike
under Section 425.16.’ (§ 904.1, subd. (a)(13).) ‘“If a judgment or
order is appealable, an aggrieved party must file a timely appeal
or forever lose the opportunity to obtain appellate review.”
[Citations.]’ (Norman I. Krug Real Estate Investments, Inc. v.
Praszker (1990) 220 Cal.App.3d 35, 46.)” (Maughan v. Google
Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246–1247.)
“‘Compliance with the time for filing a notice of appeal is
mandatory and jurisdictional. [Citations.] If a notice of appeal is
not timely, the appellate court must dismiss the appeal.’
[Citations.]” (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842.)
According to plaintiff, the trial court’s partial granting of
the anti-SLAPP motion is “interlocutory” and therefore
reviewable on appeal from the judgment. (Boldface omitted.)
The cases that he cites, however, do not support his contention.
(See Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th
1381, 1387; Mann v. Quality Old Time Service, Inc. (2006) 139
Cal.App.4th 328, 340.) Moreover, case authority supports a
11
contrary view. (See, e.g., Gumarang v. Braemer on Raymond,
LLC (2025) 110 Cal.App.5th 370, 374–375; Neurelis, Inc. v.
Aquestive Therapeutics, Inc. (2021) 71 Cal.App.5th 769, 776–777.)
Here, the trial court granted in part defendants’ anti-
SLAPP motion on May 7, 2024, and the clerk was directed to
serve notice of the order that day.7 The deadline to file the notice
of appeal was 60 days after service of the notice of the order, or, if
service did not occur, 180 days after entry of the order. (Cal.
Rules of Court, rule 8.104(a)(1)(A), (C).) Plaintiff did not file his
notice of appeal from the May 7, 2024, order until December 5,
2024, which was well beyond 180 days after the entry of the
order. Accordingly, plaintiff’s appeal from the order granting in
part defendants’ anti-SLAPP motion was untimely and we will
dismiss the appeal from that order.
B. Motion to Show Authority
Plaintiff next argues that the trial court erred by denying
his motion to show authority.8 “An attorney’s authority to
represent his purported client is presumed in the absence of a
7 The record includes a minute order that references an
attached certificate of mailing of the order. No certificate of
mailing, however, is attached.
8 It is unclear if plaintiff has standing to raise this argument.
Only “aggrieved” parties may raise issues on appeal. (See § 902.)
“Without a showing that the party’s personal rights are affected
by a ruling, the party does not establish standing.” (In re J.T.
(2011) 195 Cal.App.4th 707, 717.) We will assume without
deciding that plaintiff can demonstrate he was aggrieved by the
order.
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strong factual showing to the contrary.” (Sarracino v. Superior
Court (1974) 13 Cal.3d 1, 13; see Sullivan v. Dunne (1926) 198
Cal. 183, 190 [“[t]he fact that an attorney appears on behalf of a
party raises a [disputable] presumption of ‘authority upon his
part to do so’”].)
Here, counsel for defendants submitted declarations under
penalty of perjury testifying that she had been retained to
represent Trader Joe’s, Schrader, and Barton. Plaintiff does not
explain how he rebutted the presumption that counsel was
authorized to represent defendants, nor does he explain how the
court erred. “[I]t is a fundamental principle of appellate
procedure that a trial court judgment is ordinarily presumed to
be correct and the burden is on an appellant to demonstrate, on
the basis of the record presented to the appellate court, that the
trial court committed an error that justifies reversal of the
judgment. [Citations.] ‘This is not only a general principle of
appellate practice but an ingredient of the constitutional doctrine
of reversible error.’ [Citations.] ‘In the absence of a contrary
showing in the record, all presumptions in favor of the trial
court’s action will be made by the appellate court. “[I]f any
matters could have been presented to the court below which
would have authorized the order complained of, it will be
presumed that such matters were presented.”’ [Citation.]”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) Accordingly,
we reject plaintiff’s contention that the trial court erred by
denying his motion to show authority.
C. Demurrer
Plaintiff next contends that the trial court erred by
sustaining the demurrer without leave to amend. “In reviewing a
13
demurrer order, we independently evaluate the challenged
pleading, construing it liberally, giving it a reasonable
interpretation, reading it as a whole, and viewing its parts in
context. [Citation.] We treat the demurrer as admitting all
material facts properly pleaded, but we do not assume the
accuracy of contentions, deductions, or conclusions of law.
[Citation.]” (Shaw v. Los Angeles Unified School Dist. (2023) 95
Cal.App.5th 740, 753.) “Plaintiff[ ] bear[s] the burden of
demonstrating that the trial court erroneously sustained the
demurrer. [Citation.] We will affirm the judgment if proper on
any grounds stated in the demurrer, whether or not the trial
court acted on that ground. [Citation.]” (Id. at p. 754.)
1. Unruh Act
The Unruh Act provides in pertinent part: “All persons
within the jurisdiction of this state are free and equal, and no
matter what their ... religion [or] medical condition ... are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.” (Civ. Code, § 51, subd. (b).) “Whoever denies, aids
or incites a denial, or makes any discrimination or distinction
contrary to Section 51 [or] 51.5 … is liable for each and every
offense ....” (Id., § 52, subd. (a).)
“‘In general, a person suffers discrimination under [the
Unruh Act] when the person presents himself or herself to a
business with an intent to use its services but encounters an
exclusionary policy or practice that prevents him or her from
using those services.’ [Citation.] Unless an [Unruh Act] claim is
based on an Americans with Disabilities Act of 1990 [citation]
14
violation[9], a plaintiff is required to establish the defendant is a
business enterprise that intentionally discriminates against and
denies the plaintiff full and equal treatment of a service,
advantage, or accommodation based on the plaintiff’s protected
status. [Citations.] Intentional discrimination requires proof of
‘“willful, affirmative misconduct.”’ [Citation.] To meet this
standard, the plaintiff must show more than the disparate impact
of a facially neutral policy on a particular protected group—e.g.,
establishing the policy was a pretext for discriminatory intent or
was applied in a discriminatory manner. [Citation.]” (Civil
Rights Dept. v. Cathy’s Creations, Inc. (2025) 109 Cal.App.5th
204, 226–227.) “The [Unruh] Act expresses a state and national
policy against discrimination on arbitrary grounds. [Citation.]
Its provisions were intended as an active measure that would
create and preserve a nondiscriminatory environment in
California business establishments by ‘banishing’ or ‘eradicating’
arbitrary, invidious discrimination by such establishments.
[Citations.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th
160, 167.) Thus, “‘the [Unruh] Act does not entirely prohibit
businesses from drawing distinctions on the basis of the protected
classifications or personal characteristics; rather, “[t]he objective
of the [Unruh] Act is to prohibit businesses from engaging in
unreasonable, arbitrary or invidious discrimination. …” …
Thus, “certain types of discrimination have been denominated
‘reasonable’ and, therefore, not arbitrary.”’ [Citations.]” (Semler
9 Civil Code section 51, subdivision (f) provides that “[a]
violation of the right of any individual under the federal
Americans with Disabilities Act of 1990 … shall also constitute a
violation of this section.” Plaintiff did not allege a violation of the
Americans with Disabilities Act.
15
v. General Electric Capital Corporation (2011) 196 Cal.App.4th
1380, 1393.)
Plaintiff alleged that defendants violated the Unruh Act on
March 18, 2021, and April 5, 2021, when they denied him full and
equal access to the premises “by making his access conditional
upon his using [the special cart].” Plaintiff further alleged that
on February 2, 2022, defendants denied him full and equal access
by refusing to ring up his groceries. According to plaintiff, “[t]he
motivating reason for [defendants’] conduct was [p]laintiff’s
declination, due to his sincerely held religious beliefs and medical
exception, of their unlicensed medical advice to wear [a mask].”
Plaintiff asserted that Schrader’s statement, “‘there’s just a
process we have to follow,’” was an expression of “an established
protocol by [Trader Joe’s] in dealing with patrons like [p]laintiff
and others similarly situated.”
Defendants’ requirement that plaintiff use a special cart if
he did not wear a mask, during the COVID-19 pandemic, is not
unreasonable, arbitrary, or invidious discrimination, as a matter
of law. In response to criminal defendants’ constitutional
challenges to the wearing of masks or compliance with social
distancing requirements in courtrooms during the COVID-19
pandemic, courts have found that the requirement to wear a
mask and socially distance did not constitute constitutional
violations. (See, e.g., People v. Molina (2023) 96 Cal.App.5th 516,
520 [“California courts have repeatedly rejected constitutional
challenges to the use of masks during the COVID-19 pandemic
for both defendants and testifying witnesses, citing the important
state interest in protecting the public from a contagious disease,
the lack of effective alternatives to masking, and the relatively
minimal limitation that masks have on jurors’ ability to assess
16
witness credibility”]; People v. Kocontes (2022) 86 Cal.App.5th
787, 872 [“the court’s social distancing protocol furthered the
important public policy of ensuring the health of everyone in the
courtroom in the midst of a lethal pandemic”].) For similar
reasons, we conclude that requiring a plaintiff to either wear a
mask or shop with a special cart that would notify other
customers and employees of his unmasked status was not
arbitrary or invidious discrimination. (See Pizarro v. Lamb’s
Players Theatre (2006) 135 Cal.App.4th 1171, 1174 [“One basis
relied on by the courts for upholding discriminatory practices as
nonarbitrary is when a strong public policy exists in favor of
disparate treatment”]; Wynn v. Monterey Club (1980) 111
Cal.App.3d 789, 796 [recognizing “the right of a business
establishment to adopt reasonable restrictions on its customers
when those restrictions are rationally related to the business
being conducted or the facilities and services being provided”].)
Likewise, we find plaintiff’s allegation that on February 2,
2022, an employee refused to ring up plaintiff’s groceries because
he was not wearing a mask, does not state an Unruh Act claim.
“[The Unruh Act] shall not be construed to confer any right or
privilege on a person that is conditioned or limited by law or that
is applicable alike to persons of every sex, color, race, [or] religion
….” (Civ. Code, § 51, subd. (c).) As alleged by plaintiff,
defendants treated plaintiff differently from customers who wore
masks because of an “established protocol” to treat all customers
who did not wear masks differently from other customers. (See
Hessians Motorcycle Club v. J.C. Flanagans (2001) 86
Cal.App.4th 833, 837–838 [affirming no Unruh Act violation
regarding bar’s policy prohibiting plaintiffs from wearing “no
colors” of their club; “[the policy] is equally applicable to all
17
persons, regardless of their race, color, sex, etc. The [plaintiffs]
cannot claim they have been singled out for arbitrary
treatment”].) Accordingly, the trial court did not err by
sustaining the demurrer to the Unruh Act cause of action.
2. Tom Bane Civil Rights Act
The Tom Bane Civil Rights Act “authorizes an action for
injunctive and other equitable relief where a person, whether or
not acting under color of law, interferes or attempts to interfere,
‘by threat, intimidation, or coercion,’ with the exercise or
enjoyment by any individual or individuals of rights secured by
state or federal law.” (Allen v. City of Sacramento (2015) 234
Cal.App.4th 41, 66; see Civ. Code, § 52.1, subds. (b), (c).) “‘The
essence of a [Tom Bane Civil Rights] Act claim is that the
defendant, by the specified improper means (i.e., “threat[],
intimidation or coercion”), tried to or did prevent the plaintiff
from doing something he or she had the right to do under the law
or to force the plaintiff to do something that he or she was not
required to do under the law.’ [Citation.]” (King v. State of
California (2015) 242 Cal.App.4th 265, 294.) “‘[T]he statute was
intended to address only egregious interferences with
constitutional rights, not just any tort. The act of interference
with a constitutional right must itself be deliberate or spiteful.’
[Citation.]” (Julian v. Mission Community Hospital (2017) 11
Cal.App.5th 360, 395.) “Speech is insufficient to establish the
requisite threat unless it includes threat of violence. [Citations.]”
(Ibid.; see Civ. Code, § 52.1, subd. (k).)
Here, plaintiff did not allege that defendants threatened to
commit violence against him unless he wore a mask or shopped
18
at the store with the special cart. Nor did plaintiff allege that
defendants engaged in actual violence against him. “[C]onclusory
allegations of ‘forcible’ and ‘coercive’ interference with plaintiffs’
constitutional rights are inadequate to state a cause of action for
a violation of [Civil Code] section 52.1.” (Allen v. City of
Sacramento, supra, 234 Cal.App.4th at p. 69.) Accordingly, the
trial court did not err by sustaining the demurrer to this cause of
action.
3. Ralph Act
“The Ralph Act, codified in Civil Code section 51.7,
provides: ‘All persons within the jurisdiction of this state have
the right to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because of
political affiliation, or on account of any characteristic listed or
defined in subdivision (b) or (e) of [Civil Code s]ection 51, or
position in a labor dispute, or because another person perceives
them to have one or more of those characteristics. The
identification in this subdivision of particular bases of
discrimination is illustrative rather than restrictive.’” (Austin B.
v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860,
880.) The elements of a Ralph Act cause of action are:
(1) defendants threatened or committed violent acts against
plaintiff; (2) a motivating reason for defendants’ conduct was
their perception of plaintiff’s protected characteristic; (3) plaintiff
was harmed; and (4) defendants’ conduct was a substantial factor
in causing the harm. (See id. at pp. 880–881.)
“The statute requires violence or a threat of violence ....
There can be no ‘threat of violence’ without some expression of
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intent to injure or damage plaintiffs or their property ....”
(Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486; accord,
Animal Protection & Rescue League, Inc. v. County of Riverside
(2025) 111 Cal.App.5th 914, 919.) Plaintiff did not allege that
defendants threatened to injure him or his property. The trial
court therefore did not err by sustaining the demurrer to this
cause of action.
4. Stalking
The civil tort of stalking is “a pattern of conduct the intent
of which was to follow, alarm, place under surveillance, or harass
the plaintiff” (Civ. Code, § 1708.7, subd. (a)(1)), as a result of
which “the plaintiff reasonably feared for his or her safety, or the
safety of an immediate family member,” or “suffered substantial
emotional distress, and the pattern of conduct would cause a
reasonable person to suffer substantial emotional distress” (id.,
§ 1708.7, subd. (a)(2)). A defendant must make a credible threat
with either the intent to place plaintiff in reasonable fear for his
or her own safety or the safety of an immediate family member or
with reckless disregard for plaintiff’s or immediate family
member’s safety and persist in a pattern of conduct despite at
least one clear and definitive demand by plaintiff to cease and
abate such conduct (unless exigent circumstances prevent the
demand); or the defendant must have violated a restraining
order. (Id., § 1708.7, subd. (a)(3); see In re Brittany K. (2005) 127
Cal.App.4th 1497, 1510.)
Plaintiff alleged that Barton engaged in stalking when she
“followed [p]laintiff around the store for over 30 minutes, making
slanderous remarks, berating him, while [another employee]
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followed and filmed [p]laintiff on a cellphone.” Plaintiff further
alleged that Barton made a credible threat to plaintiff “when she
told him that she could take the groceries right out of his hands.”
The alleged conduct by Barton, however, does not constitute a
credible threat against plaintiff that would place him in
reasonable fear of his safety. Nor does plaintiff allege how
“slandering” him, “berating” him, and following plaintiff around
for 30 minutes while filming him, was a “credible threat” to his
safety. Finally, plaintiff has failed to allege a “pattern of
conduct,” as he alleged only one incident, on May 12, 2022,
during which the purported stalking occurred. (See Civ. Code,
§ 1708.7, subd. (b)(1) [“‘Pattern of conduct’ means conduct
composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose”].) Accordingly, the trial court
did not err by sustaining the demurrer to this cause of action.
5. Intentional Infliction of Emotional Distress
“A cause of action for intentional infliction of emotional
distress exists when there is ‘“‘“(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.”’”’ [Citations.] A
defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’”’ [Citation.] And the defendant’s conduct must be
‘“‘intended to inflict injury or engaged in with the realization that
injury will result.’”’ [Citation.] [¶] Liability for intentional
infliction of emotional distress ‘“does not extend to mere insults,
21
indignities, threats, annoyances, petty oppressions, or other
trivialities.” [Citation.]’ [Citations.]” (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050–1051.) “‘In order to avoid a demurrer, the
plaintiff must allege with “great[] specificity” the acts which he or
she believes are so extreme as to exceed all bounds of that
usually tolerated in a civilized community. [Citation.]’
[Citation.]” (Yau v. Allen (2014) 229 Cal.App.4th 144, 160–161;
see Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 [“the
appellate courts have affirmed orders which sustained demurrers
on the ground that the defendant’s alleged conduct was not
sufficiently outrageous”].)
Here, plaintiff alleged that defendants engaged in
intentional infliction of emotional distress when they “repeatedly
waited for [p]laintiff outside the store, or followed [p]laintiff out,
after [p]laintiff had completed his shopping, to surprise
[p]laintiff, engage [p]laintiff, make false accusations toward
[p]laintiff, and then tell [p]laintiff he was not allowed to shop at
[the store].” Plaintiff further alleged that defendants “took
[p]laintiff’s groceries from him multiple times, and denied him
service multiple times, and then later checked him out.”10 The
alleged conduct by defendants were not so “extreme and
outrageous” that they exceeded all bounds of that tolerated in a
civilized society. At best, defendants’ alleged conduct amounts to
“‘mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.... There is no occasion for the
10 Plaintiff also alleged intentional infliction of emotional
distress when defendants filed an injunction against plaintiff.
The trial court struck these allegations when it granted in part
defendants’ anti-SLAPP motion. As we explain above, we will
dismiss plaintiff’s appeal from that ruling.
22
law to intervene in every case where [someone]’s feelings are
hurt. There must still be freedom to express an unflattering
opinion, and some safety valve must be left through which
irascible tempers may blow off relatively harmless steam….’
[Citations.]” (Cochran v. Cochran, supra, 65 Cal.App.4th at
p. 496, italics omitted.) The trial court did not err by sustaining
the demurrer to this cause of action.11
D. Attorney Fees
Plaintiff contends the trial court erred by granting
defendants’ motion for attorney fees. We review an award of
attorney fees under section 425.16, subdivision (c) for abuse of
discretion. (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.)
Plaintiff argues: the motion contained “fraudulent charges”
relating to other parts of the case, and duplicate charges;
defendants did not accrue any attorney fees because the fees were
billed to a third party; and, the statute awarding attorney fees is
11 Plaintiff also fails to allege how he would cure any defects if
he were granted leave to amend. “As noted, although we are
required to decide ‘“whether there is a reasonable possibility that
the defect [in the complaint] can be cured by amendment[,] …
[t]he burden of proving such reasonable possibility is squarely on
the plaintiff”’ [citation] by ‘show[ing] in what manner he can
amend his complaint and how that amendment will change the
legal effect of his pleading.’ [Citation.]” (LeBrun v. CBS
Television Studios, Inc. (2021) 68 Cal.App.5th 199, 212.)
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“unequal” and violates due process because plaintiff, as a self-
represented litigant, was not entitled to recover attorney fees.12
As noted, the trial court awarded defendants $12,500 in
attorney fees on July 12, 2024. Plaintiff did not challenge the
amount of the fees sought by defendants until January 10, 2025,
in a motion for relief from judgment, filed after his notice of
appeal. “It has long been the general rule and understanding
that ‘an appeal reviews the correctness of a judgment as of the
time of its rendition, upon a record of matters which were before
the trial court for its consideration.’ [Citation.]” (In re Zeth S.
(2003) 31 Cal.4th 396, 405.) Moreover, on appeal, plaintiff’s
argument as to why the fees requested were “fraudulent” is
comprised of a single sentence, which references a single page of
the record. “‘Appellate briefs must provide argument and legal
authority for the positions taken. “When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.”’ [Citation.] ‘We are not bound to develop appellants’
arguments for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the
contention as waived.’ [Citations.]” (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956.) We therefore reject
as waived plaintiff’s challenge to the amount of the attorney fees
award.
We likewise reject plaintiff’s contention that defendants did
not accrue any attorney fees as having not been raised before the
12 Plaintiff also argues that the court erred by awarding any
attorney fees because it should have denied defendants’ anti-
SLAPP. Because his appeal of that issue must be dismissed as
untimely, we reject this contention.
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trial court. “It is well established that appellate courts will
ordinarily not consider errors that ‘could have been, but [were]
not raised below.’ [Citations.] The rule applies to defenses as
well as theories of liability, and to a ‘new theory for or against
recovery’ of attorney fees. [Citation.]” (Findleton v. Coyote Valley
Band of Pomo Indians (2018) 27 Cal.App.5th 565, 569.)
Finally, we reject plaintiff’s suggestion that section 425.16,
subdivision (c) is “unequal” and violates due process because
plaintiff cannot recover attorney fees as a self-represented
litigant. “[T]he term ‘attorney fees’ implies the existence of an
attorney-client relationship, i.e., a party receiving professional
services from a lawyer.” (PLCM Group, Inc. v. Drexler (2000) 22
Cal.4th 1084, 1092; see also Trope v. Katz (1992) 11 Cal.4th 274,
280 [rejecting award of attorney fees under Civ. Code, § 1717 to
attorney who chose to litigate in propria persona].)
E. Due Process and Other Arguments
Plaintiff contends the trial court demonstrated prejudice
and bias. Plaintiff also argues the court violated his due process
rights. “Generally, due process is the opportunity to be heard at
a meaningful time and in a meaningful manner.” (Brown v. City
of Los Angeles (2002) 102 Cal.App.4th 155, 174.) “‘We review
procedural due process claims de novo because “the ultimate
determination of procedural fairness amounts to a question of
law.” [Citation.]’ [Citation.]” (Severson & Werson, P.C. v.
Sepehry-Fard (2019) 37 Cal.App.5th 938, 944.) None of plaintiff’s
arguments have merit.
According to plaintiff, the trial court’s tentative ruling
(which the court later adopted in full) denying his motion to show
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authority demonstrated bias because the court: cited two cases
“for which they did not really stand”; purportedly made false
statements about plaintiff’s knowledge of defendants’ counsel’s
authority; and wore a mask during the proceeding. Plaintiff has
failed to demonstrate error. “It is ‘extraordinary’ for an appellate
court to find judicial bias amounting to a due process violation.
[Citation.] … Mere expressions of opinion, based on observation
of the witnesses and evidence, do not demonstrate judicial bias.
[Citation.] Numerous and continuous rulings against a party are
not grounds for a finding of bias. [Citation.] [¶] A constitutional
finding of judicial … bias is appropriate only when ‘extreme facts’
demonstrate a probability of actual bias. [Citation.]” (Schmidt v.
Superior Court (2020) 44 Cal.App.5th 570, 589.) Plaintiff has
failed to assert any such fact.
Plaintiff additionally contends that the trial court
demonstrated bias by refusing to “step down” after plaintiff
served a motion to disqualify under section 170.1, subdivision
(a)(6)(A)(iii) and (B). We do not review the trial court’s denial of
plaintiff’s section 170.1 motion because “[t]he determination of
the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate from the
appropriate court of appeal sought only by the parties to the
proceeding.” (§ 170.3, subd. (d).)
Plaintiff also complains that the trial court “rushed” him
during the hearings on his motion for reconsideration of the order
denying his motion to show authority. The record is to the
contrary. On April 29, 2024, plaintiff argued his motion before
the court. The matter was continued to May 3, 2024, to provide
plaintiff with “plenty of time for argument.” On May 3, 2024,
plaintiff argued his motion for reconsideration. The court asked
26
him, “Anything else?” to which plaintiff responded, “No. There’s
nothing else.” The record demonstrates the court did not rush
plaintiff and we find no error.
Plaintiff complains that his requests for “mandatory
judicial notice” were not acknowledged by the trial court.
Plaintiff identifies three requests, consisting of: two Court of
Appeal opinions and one California Supreme Court opinion; a list
of four “facts” provided by plaintiff as “universally known” (Evid.
Code, § 451, subd. (f)), stating among other things that attorneys
must be authorized in writing to represent a corporation, and
defendants’ counsel provided no such evidence; and two sections
of the Evidence Code. We find no error. No request for judicial
notice was necessary as to the state court opinions and the
Evidence Code. (See Evid. Code, § 451 [“Judicial notice shall be
taken of the following: [¶] (a) The decisional, constitutional, and
public statutory law of this state …”].) As to the “facts,” plaintiff
fails to demonstrate how such matters were “universally known.”
Plaintiff bears the burden on appeal of supporting his points with
reasoned arguments and citations to authority. (Cahill v. San
Diego Gas & Electric Co., supra, 194 Cal.App.4th at p. 956.) He
has failed to meet his burden to demonstrate that the court erred
when it did not rule on his requests for judicial notice.
Plaintiff argues that the trial court committed error by
striking his “Notice of Exceptions to Apparent Judicial Errors” as
an unpermitted filing. He fails to demonstrate how the court
erred. “‘From their creation by article VI, section 1 of the
California Constitution, California courts received broad inherent
power “not confined by or dependent on statute.” [Citations.]
This inherent power includes “fundamental inherent equity,
supervisory, and administrative powers, as well as inherent
27
power to control litigation.” [Citation.]’ [Citation.]” (Huang v.
Hanks (2018) 23 Cal.App.5th 179, 182.)
Finally, plaintiff argues that the trial court failed to
investigate “fraudulent” declarations by defendants in support of
their anti-SLAPP motion. As discussed, plaintiff failed to timely
appeal the order granting in part defendants’ anti-SLAPP motion
and we will therefore dismiss his appeal from the order granting
the motion. Moreover, plaintiff has failed to meet his burden of
demonstrating error on appeal with reasoned arguments and
citations to authority. (Jameson v. Desta, supra, 5 Cal.5th at
pp. 608–609; Cahill v. San Diego Gas & Electric Co., supra, 194
Cal.App.4th at p. 956.)
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IV. DISPOSITION
The appeal from the order granting in part defendants’
anti-SLAPP motion is dismissed. The judgment of dismissal and
order awarding attorney fees are affirmed. Defendants are
awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM (D.), J.
We concur:
HOFFSTADT, P. J.
MOOR, J.
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