On 05/26/2017 DAVID BERNSTEIN filed a Personal Injury - Other Personal Injury lawsuit against SHIA LABEOUF. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BENNY C. OSORIO, DONNA FIELDS GOLDSTEIN, RALPH C. HOFER, LAURA A. MATZ and CURTIS A. KIN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BENNY C. OSORIO
DONNA FIELDS GOLDSTEIN
RALPH C. HOFER
LAURA A. MATZ
CURTIS A. KIN
DOES 1 TO 10
WERNIK BRUCE A. ESQ.
LAW OFFICES OF BRUCE A. WERNIK
WERNIK BRUCE ALAN
SINGER MARTIN D. ESQ.
LAVELY & SINGER
BRIAN G. WOLF
9/20/2017: Other -
1/18/2018: Case Management Statement
2/7/2018: Minute Order
2/15/2018: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)
3/1/2018: NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)
3/12/2018: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL
1/25/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice
9/20/2017: DEFENDANT SHIA LABEOUF'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF DAVID BERSTEIN?S FIRST AMENDED COMPLAINT; ETC
at 08:30 AM in Department E, Curtis A. Kin, Presiding; Status Conference - Held - ContinuedRead MoreRead Less
Minute Order ( (Status Conference Regarding Appeal)); Filed by ClerkRead MoreRead Less
Notice (Re Assignment); Filed by DAVID BERNSTEIN (Plaintiff)Read MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department E; Status Conference - Held - ContinuedRead MoreRead Less
at 08:30 am in Department NCGE, Laura A. Matz, Presiding; Status Conference (REGARDING APPEAL) - Held-ContinuedRead MoreRead Less
Minute order entered: 2018-08-09 00:00:00; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department E; Trial Setting Conference - Not Held - Advanced and VacatedRead MoreRead Less
Ntc to Reptr/Mon to Prep Transcrpt; Filed by ClerkRead MoreRead Less
NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEALRead MoreRead Less
FIRST AMENDED COMPLAINT FOR: 1. ASSAULT, ETCRead MoreRead Less
Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
First Amended Complaint; Filed by Plaintiff/PetitionerRead MoreRead Less
First Amended Complaint; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
SUMMONSRead MoreRead Less
ComplaintRead MoreRead Less
Complaint; Filed by DAVID BERNSTEIN (Plaintiff)Read MoreRead Less
Summons (on Complaint)Read MoreRead Less
Civil Case Cover SheetRead MoreRead Less
COMPLAINT FOR: 1. ASSAULT ;ETCRead MoreRead Less
Case Number: BC663207 Hearing Date: June 26, 2020 Dept: E
[CCP §430.10 et. seq.]
Date: 6/26/20 (2:00 PM)
Case: David Bernstein v. Shia LaBeouf (BC663207)
Defendant Shia LaBeouf’s Demurrer to First Amended Complaint (“FAC”) is: (1) OVERRULED as to the first cause of action for Assault and third cause of action for Intentional Infliction of Emotional Distress; and (2) SUSTAINED as to the second cause of action for Slander Per Se.
With respect to the First Cause of Action for Assault, defendant contends the FAC alleges defendant engaged in mere “verbal conduct” during a confrontation with plaintiff that does not rise to the level of assault. (See Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1603-1603 [“Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another”].) “The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668–69.) Here, plaintiff alleges defendant was “pounding his fist upon the bar counter,” entered the bartender well, and took three to four steps toward plaintiff—all the while, plaintiff allegedly was “yelling at the top of his lungs” and “appeared ready to physically confront” plaintiff. (FAC ¶¶ 12-13.) These allegations, if true, are sufficient to support a finding that defendant intended to harm plaintiff and that plaintiff reasonably so believed. Further, plaintiff’s purported reaction to defendant’s alleged conduct, i.e., plaintiff raising a bottle of vodka over his shoulder in order to deter defendant due to “fear of an imminent attack” (FAC ¶ 14), further supports the reasonable inference that defendant’s actions evidenced an intent to inflict immediate injury such that plaintiff needed to defend himself.
With respect to the Second Cause of Action for Slander Per Se, “[G]eneral statements charging a person with being racist, unfair, or unjust—without more—such as contained in the signs carried by protestors, constitute mere name calling and do not contain a provably false assertion of fact.” (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1262.) Here, plaintiff only alleges that defendant called him a racist. (FAC ¶¶ 20, 21.) Plaintiff does not allege that he is being accused of treating defendant or any other individual differently because of their race. Regardless of whether the defamation concerns a public or private figure, or a matter of public or private concern, plaintiff must allege a provably false assertion of fact. (McGarry, supra, 154 Cal.App.4th at p. 112, quoting Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin (1974) 418 U.S. 264, 283 [“The sine qua non of recovery for defamation . . . is the existence of falsehood.”].) Further, the context in which the statement is made demonstrates that defendant did not make the statement because he and/or his companion were denied alcohol on the basis of race, but because defendant was intoxicated. (FAC ¶¶ 10-12.) In sum, calling plaintiff a “racist,” without more, constitutes nonactionable opinion, not actionable fact. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 [“[S]tatements cannot form the basis of a defamation action if they cannot be reasonably interpreted as stating actual facts about an individual. Thus, rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt and language used in a loose, figurative sense will not support a defamation action.”].) The demurrer to the second cause of action is SUSTAINED.
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
With respect to the Third Cause of Action for Intentional Infliction of Emotional Distress, the Court recognizes that “mere insulting language,” without more, does not amount to outrageous conduct. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) But here, plaintiff alleges that, after he refused to serve defendant alcohol, defendant slammed his fist on the bar counter, quickly entered the bartender well area, and took three or four steps toward plaintiff while yelling at the top of his lungs. (FAC ¶ 13.) Thereafter, defendant allegedly attempted to incite the predominantly African-American crowd in the bar by purportedly calling plaintiff a “Fuckin’ Racist Bitch” and “Fucking Racist,” while telling the patrons to “Wake Up, this Mother Fucker is a Racist.” (FAC ¶¶ 20, 21.) Assuming the allegations in the First Amended Complaint are true, for pleading purposes, a reasonable trier of fact could find that defendant’s conduct was outrageous. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499 [“Although it may be that mere insulting language, without more, ordinarily would not constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient to uphold his complaint as against defendants' general demurrer. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability”]; see also Overhill Farms, supra, 190 Cal.App.4th at p. 1261 [“The term ‘racist’ is of course an exceptionally negative, insulting, and highly charged word—it is hard to imagine being called much worse”].) The demurrer to the third cause of action is OVERRULED.
Ten (10) days to amend.