Alexandra Seifert v. Paul Michaelides

Demurrer

Defendants demur to the third, fifth through ninth causes of action because the claims are time barred or insufficient.

The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) As relates to a complaint, the test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff’s possible difficulty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts’ well established policy of liberality in reviewing a demurrer sustained without leave to amend, liberally construing the allegations with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918.)

Third Cause of Action – Violation of the Bane Act

Under the third cause of action, Seifert alleges defendants violated Civil Code section 52.1, the Bane Act. Seifert’s Bane Act claim is specifically premised on alleged assault, battery, threats, physical confrontation, and being coerced and intimidated. (Complaint, ¶38, pg.9:12-18.) Seifert’s attempt to reframe her Bane Act claim as one limited to merely an alleged denial of a “reasonable accommodation” (Opposition, p.5:23-25), and not an action for assault, battery, or injury, is contradicted by her own complaint.

A cause of action under the Bane Act based on the violation of a constitutional right is subject to the two-year statute of limitations for injury caused by the wrongful act of another. (Code Civ. Proc., § 335.1; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 760.) Here, the incident at defendants’ business occurred August 15, 2022 and the complaint was filed three years later, on August 15, 2025.

Accordingly, Seifert’s third cause of action is time-barred by the two-year statute of limitations under Code of Civil Procedure section 335.1, and defendants’ demurrer to the third cause of action as time barred, is sustained, without leave to amend.

Fifth Cause of Action - California Civil Rights Laws and Enforcement of Mask Policy

Seifert’s fifth cause of action is for an alleged violation of “California Civil Rights Laws Based on Arbitrary and Discriminatory Enforcement of Mask Policy”.

A plaintiff pleading a violation of a statutory duty “must specifically allege the applicable statute or regulation,” as that is the only way for the defendant to be advised of the factual and legal basis of the claim against it. (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292–293.) If a plaintiff fails to identify the provision of law allegedly violated by the defendant, they “fail to meet their burden of stating and substantiating

a legally sufficient claim of unlawfulness.” (Marzec v. Public Employees' Retirement System (2015) 236 Cal.App.4th 889, 901–902.)

Furthermore, contrary to plaintiff’s assertions, a defendant may file a demurrer and answer at the same time. (Code Civ. Proc., §430.0, subd. (c).)

Accordingly, defendants’ demurrer to the fifth cause of action is sustained. (Code Civ. Proc., §430.10, subd. (e).) Leave to amend will be granted to the extent Plaintiff can allege an applicable statute or regulation that Defendant allegedly violated.

Sixth through Ninth Causes of Action – Statute of Limitations

In California, the general statute of limitations for personal injury actions is the two-year period set forth at California Civil Procedure Code section 335.1. This applies to Seifert's personal injury actions premised on: the sixth cause of action pertaining to the invasion of privacy (Maheu v. CBS, Inc. (1988) 201 Cal. App. 3d 662, 676); the seventh cause of action premised on the California Equal Protection Clause (W. Shield Investigations & Sec. Consultants v. Superior Court (2000) 82 Cal. App. 4th 935, 953); and the eighth and ninth causes of action which are premised on personal injury actions under 42 U.S.C. § 1983 claims. (Maldonado v. Harris (9th Cir. 2004) 370 F.3d 945, 954).

The complaint was filed on August 15, 2025, which is three years after the date of the alleged incident that took place on August 15, 2022 (Complaint, ¶7, pg. 3:13), and well past the two-year statute of limitations.

Accordingly, defendants’ demurrer to the sixth through ninth causes of action is sustained as being time barred without leave to amend.

Sixth Cause of Action – Constitutional Rights to Privacy, Bodily Integrity and Dignity

Seifert’s sixth cause of action asserts three types of violations pursuant to Article 1, section 1 of the California state Constitution, specifically, the rights to bodily integrity, dignity, and privacy.

With respect to the right to privacy, Seifert alleges: “Defendants violated Plaintiff’s right to privacy by enforcing policies that result in discrimination and without proper accommodation and by making false claims regarding Plaintiff’s conduct to law enforcement.” (Complaint, ¶41, pg.10:27-11:2.) Furthermore, Seifert’s integrity and dignity claims are based on allegation pertaining to assault and battery. (Complaint, ¶41, pg.10:18-11:4.)

California Constitution, Article I, Section 1, provides, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (“Hill”), the California Supreme Court laid out the standards to be used in assessing whether particular conduct should be considered a violation of an individual’s privacy rights. Under Hill, “[t]he party claiming a violation of the constitutional 11

right of privacy established in Article I, Section 1 of the California Constitution must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.” (Id., pgs. 39– 40.)

Under these circumstances, Seifert’s allegations do not allege a protected privacy interest. Seifert’s allegations may violate other rights, but not necessarily privacy rights.

Furthermore, the right to bodily integrity is implied from the right to privacy. (In re Luis F. (2009) 177 Cal. App. 4th 176, 183 (Luis).) Under these circumstances, the complaint is insufficient as to what the privacy right has been infringed upon, whether there is a reasonable expectation of privacy under the circumstances, and whether in fact there was a serious invasion of that privacy interest.

Finally, defendants articulate that “Article 1, Section 1, does not explicitly include a "right to dignity". There is an explicit right to dignity set forth in Article 1, Section 28(b), but that right is afforded only to victims of crime and so has no application herein.” (Moving Papers, pg. 4:24-26.) Plaintiff does not contest this argument.

Accordingly, the demurrer to the sixth cause of action is sustained. (Code Civ. Proc., §430.10, subd. (e).)

Seventh through Ninth Causes of Action – Violation of California’s and the United States Equal Protection Clause; Violation of Federal Constitutional Privacy Rights

Seifert’s seventh cause of action asserts a violation of the California Equal Protection Clause, under Article I, Section 7. Seifert alleges “Defendants arbitrarily enforced a mask requirement, changing grounds therefore, against Plaintiff without affording reasonable accommodations or an interactive process. Plaintiff was denied equal access and treatment.” (Complaint, ¶42, p11:12-14.)

Seifert’s eighth cause of action asserts a violation of the Equal Protection Clause under the Fourteenth Amendment of the United States Constitution. Seifert alleges that “Defendants under color of state law via purported enforcement of a state agency requirement, deprived Plaintiff of these constitutional rights by discriminating based on disability and denying reasonable accommodations.” (Complaint, ¶43, p11:24-26.)

Seifert’s ninth cause of action contends that defendants violated the “Federal Constitutional Rights to Privacy and Bodily Integrity.” Seifert alleges “Defendants’ acts of physical interference, false reporting, and discriminatory enforcement of policies violated these fundamental rights.” (Complaint, ¶44, p.12:7-8.)

Each of these causes of action require state action or persons acting under color of state law. (See Martin v. Heady (1980) 103 Cal.App.3d 580, 586 [with respect to Article I, Section 7]; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714 [provides that “Section 1983 [which applies to causes of action with respect to the Fourteenth Amendment or generally any action for relief from a deprivation of “any rights, privileges, or immunities secured by the Constitution] applies to persons acting ‘under color of’ state law,... and 12

normally does not apply to private actors,... ‘A private individual may be liable under section 1983 if she conspired or entered joint action with a state actor....’ ”]; Graham v. Connor (1989) 490 U.S. 386, 393–94.)

Seifert fails to allege how defendants acted under color of state law. Seifert does not dispute that defendants acting under state law is an essential element with respect to the seventh though ninth causes of action, but rather argues that her complaint is sufficient in establishing this element:

“Defendants acted under color of state law by enforcing what they claimed was a state-issued health requirement and by affirmatively invoking the coercive power of the state through a knowingly false police report in order to secure Plaintiff’s removal and denial of services. By doing so, Defendants effectively acted as state actors under the joint action doctrine, using state authority to further discriminatory goals. Defendants’ conduct deliberately denied Plaintiff equal protection under the law based on her disability, interfered with her rights to bodily integrity, autonomy, and personal safety, and subjected her to foreseeable harm.”

(Seifert’s Opposition Papers, pg. 9:6-12.)

This Court disagrees. The US Supreme Court provided in Lugar v. Edmondson Oil Corp. (1982), 457 U.S. 922, 939 (“Lugar”) that the analysis begins first by determining the following two questions: “the first question is whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority. The second question is whether, under the facts of this case, respondents, who are private parties, may be appropriately characterized as “state actors.”

“When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action. See Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992) (“Only in rare circumstances can a private party be viewed as a ‘state actor’ for section 1983 purposes.”); Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir.1991) (“[P]rivate parties are not generally acting under color of state law.”). In order for private conduct to constitute governmental action, “something more” must be present.

See Lugar, 457 U.S. at 939, 102 S.Ct. 2744 (“Action by a private party pursuant to this statute, without something more, was not sufficient to justify a characterization of that party as a ‘state actor.’ ”). Courts have used four different factors or tests to identify what constitutes “something more”: (1) public function, (2) joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. See id.; Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir.), cert. denied, 522 U.S. 996, 118 S.Ct. 559, 139 L.Ed.2d 401 (1997); Parks Sch. of Bus., Inc. v.

Symington, 51 F.3d 1480, 1486 (9th 13

Cir.1995); Gorenc v. Salt River Project Agric. Improvement and Power Dist., 869 F.2d 503, 506 (9th Cir.1989).”

(Sutton v. Providence St. Joseph Medical Center (9th Cir. 1999) 192 F.3d 826, 835–836.)

Seifert contends that her complaint does not necessarily need to address how the defendants were state actors where Seifert provides that “[w]hile Defendants argue there was no “state action”, this is a factual issue and subject to discovery, which so far Defendants have blatently [SIC] evaded.” (Seifert’s Opposition Papers, pg. 10:4-5.)

A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718, fn.7.)

Furthermore, Seifert has not adequately alleged what right or privilege has been deprived. Generally speaking, there is no fundamental constitutional right to not wear a mask. (See Denis v. Ige, 538 F. Supp. 3d 1063, 1080-81 (D. Haw. 2021) (dismissing a substantive due process challenge to a state-wide mask mandate, since “ ‘the right to breathe oxygen without restriction’ is not a fundamental right”); See Branch-Noto v. Sisolak, 576 F. Supp. 3d 790, 799 (D. Nev. 2021) (“[T]he right to parent as one sees fit does not entitle parents to undermine local public-health efforts during a global pandemic by refusing to have their children comply with a school mask requirement, particularly when they've affirmatively chosen that option over the maskless, distance-learning alternative that [the district] also made available.”); Gunter v.

N. Wasco Cnty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 1141, 1155-56 (D. Or. 2021); Guilfoyle v. Beutner, No. 2:21-CV-05009-VAP (MRWx), 2021 WL 4594780, at *17 n.8 (C.D. Cal. Sept. 14, 2021).)

Since Seifert did not allege any facts demonstrating that defendants were state actors, or adequately allege what right or privilege has been deprived, the demurrer with respect to seventh through ninth causes of action are sustained. Further, it is obvious to the court that there is no way Seifert can plead that the defendants are state actors. Therefore, the demurrer to these causes of action is sustained, without leave to amend.

Motion to Strike

Defendants move to strike portions of Seifert’s complaint for several reasons such as the pleadings are not supported by law, mootness, etc.

The court may, upon a motion ... or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]... [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Code Civ. Pro., § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither 14

pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or crosscomplaint. (Code Civ. Pro., § 431.10(b).)

Punitive Damages

Defendants make the motion to strike the claim and prayer for punitive damages and the allegations set forth in paragraphs 1, 33, 36, 41, 42, 43, 44 of Seifert’s Complaint and paragraph 48 of plaintiff’s prayer for relief without leave to amend on the basis that plaintiff’s prayer for punitive damages against defendants as pled is not supported by law.

A plaintiff may seek punitive damages only "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." (Civ. Code, § 3294(a).) "In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff." (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255 [internal citations omitted].) "In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth." (Id.) Furthermore, there is a heightened pleading requirement regarding a claim for punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.).

Civil Code section 3294, subdivisions (c)(1)-(3) define “malice,” “oppression” and “fraud” as follows:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

“California has traditionally allowed punitive damages to be assessed against an employer (or principal) for the acts of an employee (or agent) only where the circumstances indicate that the employer himself was guilty of fraud, oppression, or malice. Thus, even before section 3294, subdivision (b) was added to the Civil Code in 1980, the courts required evidence that the employer authorized or ratified a malicious act, personally committed such an act, or wrongfully hired or retained an unfit employee. For corporate or other large organizations, such conduct must have been performed by an “ 'agent ... employed in a managerial capacity and ... acting in the scope of 15

employment,' ” or ratified or approved by a “ 'managerial agent' ” of the organization. [Citations Omitted.] The obvious point is that in performing, ratifying, or approving the malicious conduct, the agent must be acting as the organization's representative, not in some other capacity.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 723 [34 Cal.Rptr.2d 898, 882 P.2d 894], as modified on November 23, 1994).)

With respect to the eighth and ninth causes of action, punitive damages may be permitted if a defendant’s “conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” (Smith v. Wade (1983) 461 U.S. 30, 56.)

Here, Seifert has made broad allegations in her complaint that do not rise to the levels that are prescribed under Civil Code section 3294, subdivisions (c)(1)-(3). The complaint does not allege the requisite intent required, the factual circumstances demonstrating this intent, or facts explaining why defendants should be subject to punitive damages for the acts of its employees. Accordingly defendants’ motion to strike is granted, without leave to amend.

Civil Penalties

Defendants move to strike the civil penalty allegations pursuant to Civil Code section 52.1 at paragraph 38 and paragraph 47 of plaintiff’s prayer is moot as the Court has sustained the demurrer as to the Bane Act.

Furthermore, Seifert’s contention that she is allowed to claim a civil penalty pursuant to the Bane Act because defendants did not meet and confer on this issue, lacks merit. Any alleged failure to meet and confer does not authorize denial of a motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).)

Declaratory Relief

Defendants seek to strike mention of declaratory relief (Complaint, ¶1, pg. 2:12- 13) and declaratory relief sought. (Complaint, ¶49, pgs. 12:28-13:10.)

“‘Declaratory relief is appropriate where there is a justiciable controversy, but not where the dispute is moot, or only hypothetical or academic.’ (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal.App.4th 465, 481 [6 Cal. Rptr. 3d 367].) When questions presented by an action for declaratory relief are, or have become, moot, a court has no duty to proceed to determine rights and duties of the parties and the action should be dismissed. (Citations omitted.)” (Ghost Golf, Inc. v. Newsom (2024) 102 Cal.App.5th 88, 100.)

Evidence Code section 452, subdivision (b), the court may take judicial notice of the “Regulations ...issued by or under the authority of ...any public entity.” Pursuant to Evidence Code section 452, subdivision (c), the court may take judicial notice of “Official acts” of the state, including information on government agency websites (Moehring v. Thomas (2005) 126 Cal.App.4th 1515, 1523, fn. 4; Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1050, fn. 7 [courts may take judicial notice of information published on

official government websites]; In re Israel O. (2015) 233 Cal.App.4th 279, 289, fn. 8; People v. Morales (2018) 25 Cal.App.5th 502, 511, fn. 7.)

Here, defendants ask the court to take judicial notice that mask requirements by the state of California are no longer in effect as of March 3, 2023. (RJN, Ex. 3.) The Court takes Judicial Notice that the State of California no longer has masking policy.

Seifert seeks declaratory relief where she argues defendants are “acting under color of state law.” (Complaint, ¶49, pg. 13:3.) However, seeing how there is no more California mask mandate, the request for declaratory relief is moot, and the aforementioned sections shall be stricken, without leave to amend.

Reasonable Attorney Fees; Legal Research Costs and Expert Fees

Defendants seek to strike references to “reasonable attorney’s fees,” “legal research costs,” and “expert fees” pertaining to relief requested by Seifert. (Complaint, ¶38, pg. 9:18; ¶50, pg. 13:11-12.)

Here, the motion to strike for these potential costs is premature. The fact that plaintiff is currently self-represented does not preclude the possibility of her obtaining legal representation at a later tie, which would make these allegations material and appropriate.

Accordingly, the motion to strike these references is denied.

Leave to amend

Leave to amend should be granted where there is a “reasonable possibility the pleading can be cured by amendment.” (Brenner v. City of El Cajon, B (2003) 113 Cal.App.4th 434, 444.)

Leave to amend is denied with respect to relief sought for declaratory relief, considering that California no longer has a mask mandate, rendering that issue moot. Leave to amend is further denied with respect to the third, and sixth through ninth causes of action as Seifert has failed to adequately demonstrate how defects in her pleadings with respect to those causes of action can be cured through amended pleadings.

Seifert is granted the opportunity to amend her complaint with respect to the fifth cause of action.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 05/19/26. (Judge’s initials) (Date)

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