Filed 5/27/22 Palm v. Red Lobster Hospitality LLC CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LE’ELDRED PALM, SR.,

Plaintiff and Respondent,

v.

RED LOBSTER HOSPITALITY 

LLC,

Defendant and Appellant.

B309233

Los Angeles County

Super. Ct. No. 20STCV07929

 

APPEAL from an order of the Superior Court of Los Angeles 

County, Rafael A. Ongkeko, Judge. Affirmed.

Baker & Hostetler, Shareef S. Farag, Joseph S. Persoff and 

Amy E. Beverlin for Defendant and Appellant.

Le’Eldred Palm, Sr., in pro. per., for Plaintiff and 

Respondent.

____________________________________
2

SUMMARY

Plaintiff Le’Eldred Palm, Sr., sued Red Lobster Hospitality 

LLC (Red Lobster or defendant) and two of its employees, alleging 

causes of action for negligence, intentional infliction of emotional 

distress, violation of the Unruh Civil Rights Act (Civ. Code, § 51), 

and violation of the Tom Bane Civil Rights Act (Bane Act, Civ. 

Code, § 52.1). Defendant filed an anti-SLAPP (strategic lawsuit 

against public participation, Code Civ. Proc., § 425.16) motion to 

strike the complaint. (Undesignated statutory references are to 

section 425.16.) The trial court granted the motion in part and 

denied it in part. Defendant appeals, contending the court should 

have struck the entire complaint. 

We affirm the trial court’s order.

FACTS

1. Plaintiff’s Complaint

In early 2018, plaintiff, an African-American male, 

patronized the Red Lobster restaurant in Lakewood. On one of 

those occasions, plaintiff was sitting at the bar talking with 

another man. When the bartender, Robert Gagnon, served him his 

drink, he said, “There you go boss.” Plaintiff “immediately started 

having heart palpitations, shortness of breath, and began to 

sweat.” He told the bartender not to call him “boss” because “it 

was a racial stereotype.” The bartender laughed and “half heartily 

apologized.”

When a new bartender came on duty, plaintiff asked to 

speak to a manager. The manager, Luis Perez, said that the 

bartender “was trying to serve you better.” Plaintiff explained that 

the term “boss” refers to “gang bangers, thugs, and drug dealers,” 

and asked the manager if he was aware of the Unruh Civil Rights 

Act. Plaintiff informed Mr. Perez that the Unruh Civil Rights Act 
3

prohibits all forms of stereotypical discrimination in all business 

establishments, and that the manager should know about the Act. 

After that incident, plaintiff patronized the restaurant 

several times over several weeks, but “was concerned about 

whether or not Red Lobster’s employees would retaliate against 

him for complaining about being racially stereotyped.” 

On March 8, 2018, several weeks after the “boss” incident, 

plaintiff met with William Drake at the restaurant. While they 

were talking at the bar, Mr. Drake accidentally knocked over his 

glass of wine and the glass broke. Plaintiff went to the restroom to 

clean the wine from his shoes, and as he was returning, a group of 

people at a table complimented his African attire. While showing 

them how it was made, plaintiff accidentally knocked over a glass 

of wine that was close to the edge of their table. Plaintiff 

apologized and the group accepted his apology “in a kind and 

friendly manner.” 

Plaintiff returned to the bar area, and a few minutes later, a 

young man “tapped [plaintiff] on his left shoulder and told 

[plaintiff] ‘we have to ask you to leave.’ ” Steven Patch was the 

manager who asked plaintiff to leave. Plaintiff refused. A few 

minutes later, three deputy sheriffs entered the restaurant, and 

asked to speak with plaintiff outside. Plaintiff complied, and “was 

then told by one of the deputies he had knocked over a cart and 

broke some glasses.” He told them he did not knock over a cart or 

break any glasses. One of the deputies said, “they don’t want you 

here, you have to leave.” 

On March 12, 2018, plaintiff called the sheriff’s department. 

Sergeant Oakley retrieved the report on the March 8 incident, and 

told plaintiff, “You were breaking glasses on the bar, arguing with 

staff and you refused to leave.” Plaintiff told Sergeant Oakley that 
4

none of those events took place, and arranged to obtain a copy of 

the report.

On March 13, 2018, plaintiff went to the restaurant and sat 

at the bar. Mr. Perez told plaintiff, “You are no longer welcome at 

the restaurant.” Mr. Perez brought over the general manager, 

Michael Waller, who told plaintiff that the sheriff’s department 

“told me not to serve you, and to call them if you returned to the 

restaurant, you have to leave.” Plaintiff went out to the parking 

lot and called the sheriff’s department, and a deputy told him the 

department did not (and did not have the authority to) tell the 

restaurant not to serve plaintiff. Plaintiff reported the deputy’s 

statement to Mr. Waller, who had stepped outside the restaurant. 

Mr. Waller then stated, “you are not allowed to enter the 

restaurant today; you can come back tomorrow to discuss entering 

the restaurant.” They made an appointment for the following day.

Plaintiff and a friend, Cranston Howard, attended the 

meeting on March 14, 2018, with Mr. Waller. Mr. Waller told 

plaintiff, “[Y]ou are allowed to patronize the restaurant; however, 

you are not allowed to speak to anyone outside of the bar area, and 

if you do, I have instructed my staff to call the authorities to have 

you removed from the restaurant.” Mr. Waller further stated that 

“also, you are not allowed to speak to anyone in the restaurant 

concerning their civil rights, and if you do, I have instructed my 

staff to call the [authorities] to have you removed from the 

restaurant.” 

On February 28, 2020, plaintiff filed a complaint alleging the 

facts just described, naming Red Lobster Hospitality LLC, Robert 

Gagnon, and Michael Waller as defendants. (The trial court 

granted a motion to quash service of summons on Mr. Gagnon and 
5

Mr. Waller, and that ruling is not at issue.) Plaintiff alleged four 

causes of action. 

In his negligence claim, plaintiff cited Mr. Gagnon’s use of 

the term “boss” as a “stereotypical discriminatory racial epithet”;

Mr. Waller’s conduct that “denied [plaintiff] access to Red 

Lobster[’]s restaurant, and threaten[ed] [plaintiff] with removal 

from the restaurant if he spoke to anyone in the restaurant 

concerning civil rights”; and the “false report to the Lakewood 

Sheriff[’]s Department accusing [plaintiff] of ‘Vandalizing,’ [its]

property.”

Plaintiff’s second cause of action, for intentional infliction of 

emotional distress, likewise relied on the “boss” incident; the “false 

Sheriff’s report” by one of Red Lobster’s agents “which had 

[plaintiff] removed from their restaurant in full public view”; the 

denial of service; and the threat “that if he spoke to any patrons 

about civil rights in public accommodations for African Americans 

the Sheriff’s would be called on him to have him removed again 

from” the restaurant. 

Plaintiff’s third cause of action alleged violation of the Unruh

Civil Rights Act based on the same set of facts. Plaintiff alleged 

defendant “made a distinction that incited a denial of the full and 

equal accommodations, advantages, facilities, privileges and 

services to [plaintiff].” Plaintiff asserted race was a substantial 

motivating reason for defendant’s discriminatory conduct against 

him.

Finally, plaintiff alleged “coercion in violation of the Bane 

Civil Rights Act” against Red Lobster and Mr. Waller, “based on a 

nonviolent threat with severe consequences.” Plaintiff alleged the 

false report to the sheriff’s department accusing him of vandalism 

interfered with his right to patronize the restaurant. Plaintiff 
6

again alleged that Mr. Waller told him “if he spoke to any African 

American[]s in the restaurant about their civil rights that he has 

instructed his staff to call the Sheriff’s Department to have 

[plaintiff] remove[d] from the restaurant.” 

2. Defendant’s Motions

Defendant filed a demurrer to the complaint and an antiSLAPP motion to strike the complaint, the latter supported by 

declarations from Mr. Waller, Mr. Gagnon, and Steven Patch. 

Defendant’s declarations painted a somewhat different picture

from that described in the complaint. 

Mr. Waller stated that plaintiff “was inebriated and knocked 

over the drinks of other restaurant guests” during the March 8 

incident. At their meeting on March 14, he told plaintiff “that he is 

welcome to drink at the restaurant, but that he cannot overdrink 

and he cannot disrupt other restaurant patrons.” Mr. Waller 

described and attached logbook entries of the day’s activities for 

March 8 and March 13, stating that managers are required to 

maintain these logs for every shift they work, inputting the 

information on the same day.

Mr. Gagnon’s declaration described the occasion on which he 

presented plaintiff with a drink and said, “here you go, boss.” He 

stated the term “boss” is one he “regularly used in conversation 

with people to help develop rapport.” Plaintiff “explained to me 

that he deemed the term ‘boss’ offensive.” Mr. Gagnon also 

described the March 8 incident. He stated plaintiff “had had a few 

drinks and was clearly inebriated. [Plaintiff] stood up from the bar 

and began approaching other tables, initiating conversations with 

the other restaurant patrons. It was apparent that [plaintiff] was 

making these other restaurant patrons uncomfortable. At one of 
7

the tables [plaintiff] approached, he knocked over a drink.” A 

manager asked plaintiff to leave and he refused. 

Steven Patch was the manager who asked plaintiff to leave

on March 8, and who called the police when he refused. His 

declaration stated plaintiff drank four glasses of Johnnie Walker 

Black, was clearly inebriated, initiated conversations with patrons 

he did not know, and knocked over “multiple glasses of wine and a 

bottle of wine”; one of the glasses of wine “broke onto one of the 

patrons.” Mr. Patch asked plaintiff to stay at the bar and not to 

bother other restaurant guests; plaintiff “became hostile and 

aggressive” and told Mr. Patch he would not leave. Mr. Patch 

called the police. He entered a recap of his March 8 shift into the 

computer system. A copy of the log for that date is attached to his 

declaration. 

Defendant argued that plaintiff’s claims all arose out of 

(1) allegations that Red Lobster made a false report to the sheriff’s 

department, and (2) allegations that Mr. Waller told plaintiff “he 

could not speak to restaurant patrons about civil rights.” 

Defendant pointed out that filing a police report, even a false one, 

is protected activity. The claim that Mr. Waller told plaintiff he 

could not speak to other patrons about civil rights, defendant 

argued, arose from Red Lobster’s “alleged desire not to have civil 

rights, an issue of public interest, discussed at its open-to-thepublic restaurant.” Defendant contended it was within Red 

Lobster’s “civil rights not to have certain speech associated with its 

restaurant.” “Simply put, African American civil rights are an 

issue of public interest and Plaintiff’s allegations arise out of 

Defendants’ alleged attempts to moderate discussion of that issue 

at the restaurant.” Defendant further contended plaintiff could 

not establish any of his claims had minimal merit. 
8

Plaintiff’s opposition argued none of his claims arose from 

protected activity, and he could establish a probability of success. 

He included a declaration from William Drake, stating it was he 

who accidentally hit and broke his glass of wine on the countertop 

at the bar, and “[t]here were no issues or ill feelings on anyone’s 

part.” Plaintiff also presented a declaration from a Red Lobster 

bartender, Carl Winters, who was ending his shift at the time of 

the March 8 incident. Mr. Winters saw Mr. Drake accidentally 

knock over his glass while Mr. Drake and plaintiff were talking. 

Mr. Winters helped clean up the glass, and both plaintiff and 

Mr. Drake thanked him. Before he left the building, he noticed his 

manager approach plaintiff and Mr. Drake, and thought the 

manager “was concerned about safety and wanted to check to see 

how [plaintiff] and [Mr. Drake] were doing.” 

A declaration from Cranston Howard recounted the 

March 14 meeting he attended with plaintiff and Mr. Waller. 

Mr. Howard’s declaration stated Mr. Waller “told [plaintiff] he 

could patronize the restaurant; however, he was restricted to the 

bar area, and the bar area alone.” Mr. Waller told plaintiff “he 

could not interact or associate with anyone outside of the bar area, 

and if he did not comply he had instructed his staff to notify the 

authorities. [¶] Mr. Waller, also told [plaintiff] that he was not 

allowed to speak to other patrons concerning their civil rights, and 

again told [plaintiff] if he did the authorities would be called.” 

During the meeting, Mr. Waller’s “attitude toward [plaintiff] was 

mean spirited, demeaning, and condescending.” 
9

3. The Trial Court’s Ruling

The court held a hearing on defendant’s anti-SLAPP motion 

and on defendant’s demurrer to the complaint on October 5, 2020.

The trial court ruled that the filing of a police report, where 

its veracity is in dispute, is protected activity. Consequently, 

defendant met its prima facie burden to show it was engaging in 

protected activity “[f]or all allegations in the complaint relating to 

Defendants’ filing a ‘false report’ to the sheriff.” 

The court found the other allegations did not arise from 

protected activity. Thus:

Defendant was required to demonstrate the statements in 

“asking plaintiff to leave and not patronize [the] restaurant” were 

in connection with an issue of public interest under either 

subdivision (e)(3) or (e)(4) of the anti-SLAPP statute. “The court 

does not find that Defendants’ comments to one party about 

whether or not they can patronize one particular restaurant (or 

what areas in that restaurant) to be an issue that affects large 

numbers of people beyond the direct participants,” or that it was a 

newsworthy event, so the activity was not protected.

The court also rejected defendant’s claim that “not allowing 

Plaintiff to discuss civil rights” was protected activity. The court 

observed Red Lobster was “not being forced to hold an opinion for 

which it does not agree.” Further, the conduct alleged “did not 

occur in an open forum carried over public radio or even some 

other public forum. Accordingly, the alleged speech did not affect a 

large number of people and, thus, is not a public issue.”

Similarly, addressing plaintiff as “boss” did not affect large 

numbers of people beyond the direct participants and did not 

involve a topic of widespread public interest, and so was not 

protected activity.
10

The court further ruled that plaintiff could not establish the 

minimal merit of the claims involving the police reports. 

“[S]tatements Defendants allegedly made to the Lakewood sheriff 

deputies fall under the litigation privilege in Civil Code § 47(b).” 

Consequently, “[a]ll allegations of Plaintiff’s claims concerning and 

arising from any police (more precisely, sheriff) reports are 

stricken.” 

The court also sustained defendant’s demurrer, finding 

plaintiff failed to sufficiently allege causes of action for negligence, 

intentional infliction of emotional distress, or violations of the 

Unruh Civil Rights Act and the Bane Act. The court sustained the 

demurrers to each cause of action with leave to amend, and 

plaintiff filed his first amended complaint on October 27, 2020.

On November 24, 2020, defendant filed a notice of appeal 

from the court’s order denying its special motion to strike.

DISCUSSION

We find no error in the trial court’s ruling. 

1. The Law

The anti-SLAPP statute and procedures have been described 

many times.

A defendant may bring a special motion to strike any cause 

of action “arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue . . . .” (§ 425.16, subd. (b)(1).) Acts in furtherance of 

free speech rights in connection with a public issue include, as 

relevant to this appeal, “any written or oral statement or writing 

made in a place open to the public or a public forum in connection 

with an issue of public interest,” and “any other conduct in 
11

furtherance of the exercise of the constitutional right of petition or 

the constitutional right of free speech in connection with a public 

issue or an issue of public interest.” (Id., subd. (e)(3) & (4).) 

When ruling on an anti-SLAPP motion, the trial court 

employs a two-step process. The moving defendant bears the 

initial burden of establishing that the challenged allegations or 

claims “ ‘ “aris[e] from” protected activity in which the defendant 

has engaged. [Citations.] If the defendant carries its burden, the 

plaintiff must then demonstrate its claims have at least “minimal 

merit.” ’ [Citation.] If the plaintiff fails to meet that burden, the 

court will strike the claim.” (Wilson v. Cable News Network, Inc. 

(2019) 7 Cal.5th 871, 884.) 

In making these determinations, the trial court considers 

“the pleadings, and supporting and opposing affidavits stating the 

facts upon which the liability or defense is based.” (§ 425.16, 

subd. (b)(2).) “As to the second step, a plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its 

complaint, even if verified; instead, its proof must be made upon 

competent admissible evidence.’ ” (Monster Energy Co. v. 

Schechter (2019) 7 Cal.5th 781, 788.)

Our review is de novo. (Soukup v. Law Offices of Herbert 

Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

2. This Case

a. Protected activity

As relevant to this appeal, plaintiff claims to have been 

injured by defendant’s conduct (1) in calling him “boss,” a term he 

views as a derogatory racial epithet, and (2) in denying him service 

by telling him he can patronize the restaurant only if he does not 

discuss civil rights issues with other patrons of the restaurant. 

(We need not consider the allegations concerning the false police 
12

report, as these have been stricken and plaintiff has not appealed 

that ruling.) 

Defendant contends that “civil rights is an issue of public 

interest,” and the trial court “applied the incorrect legal standard” 

in ruling otherwise. Defendant is mistaken, as the precedents we 

describe post plainly show. The trial court properly concluded 

defendant’s statements and conduct are not statements or activity 

“in connection with a public issue or an issue of public interest” 

(§ 425.16, subd. (e)(4)).

But first, we point out that defendant’s arguments have 

made a simple case appear to be complicated. Defendant begins 

with a convoluted argument that confuses the step one analysis of 

protected activity with the merits of the claims. Defendant argues, 

for example, that plaintiff’s Unruh Civil Rights Act claim does not 

arise out of the “boss” statement because that statement is not a 

denial of service based on discrimination. Similarly, defendant 

asserts the Bane Act claim does not arise out of the “boss” 

statement because speech is insufficient to establish the requisite 

threat under the Bane Act. These are arguments about the merits 

of plaintiff’s claims and are irrelevant in the step one analysis of 

whether defendant’s statement was protected activity. 

The defendant can satisfy the “arising from” requirement 

only by “ ‘demonstrat[ing] that the defendant’s conduct by which 

plaintiff claims to have been injured falls within one of the four 

categories described in subdivision (e) . . . .’ ” (Park v. Board of 

Trustees of California State University (2017) 2 Cal.5th 1057, 

1063.) Here, the injury-producing conduct plaintiff has alleged 

includes the “boss” statement and the “no discussion of civil rights” 

statement. The only question at step one is whether those 

statements are protected First Amendment activity under the anti-
13

SLAPP statute. The statements are not protected activity unless 

they were made in connection with an issue of public interest. 

They were not.

“[B]oth the third and fourth categories of conduct that fall 

within section 425.16[, subdivision (e)] are subject to the limitation 

that the conduct must be in connection with an issue of public 

interest. The Legislature intended this requirement to have a 

limiting effect on the types of conduct that come within the third 

and fourth categories of the statute.” (Weinberg v. Feisel (2003) 

110 Cal.App.4th 1122, 1132.)

The point is summarized in Workman v. Colichman (2019) 

33 Cal.App.5th 1039 (Workman). “To fall under 

section 425.16(e)(4), ‘the conduct must be in connection with an 

issue of public interest.’ [Citation.] ‘[A] matter of public interest 

should be something of concern to a substantial number of people,’

and ‘the assertion of a broad and amorphous public interest is not 

sufficient.’ [Citation.] ‘In evaluating the first prong of the antiSLAPP statute, we must focus on “the specific nature of the speech 

rather than the generalities that might be abstracted from it.” ’

[Citations.] To be considered an issue of public interest, the 

communication must ‘go beyond the parochial particulars of the 

given parties.’ ” (Id. at p. 1048.)

The Supreme Court makes the same point in FilmOn.com 

Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn). “[A]

statement is made ‘in connection with’ a public issue when it 

contributes to—that is, ‘participat[es]’ in or furthers—some public 

conversation on the issue.” (Id. at p. 151.) “[W]e agree . . . that ‘it 

is not enough that the statement refer to a subject of widespread 

public interest; the statement must in some manner itself 

contribute to the public debate.’ ” (Id. at p. 150.) “ ‘[T]he fact that 
14

“a broad and amorphous public interest” can be connected to a 

specific dispute’ ” is not enough. (Ibid.)

None of these criteria is met, either by the “boss” statement 

or by defendant’s conduct allegedly telling plaintiff that he cannot 

discuss civil rights issues with patrons at the restaurant, and will 

be removed if he does. The fact that “civil rights” is the topic 

plaintiff cannot discuss in the restaurant does not transform 

defendant’s conduct into conduct “in connection with a public issue 

or an issue of public interest.” (§ 425.16, subd. (e)(4).) 

Defendant’s statements are not matters of “widespread 

public interest” and neither further nor involve participation in 

any public discourse on an issue of civil rights. The 

communication occurred in a meeting among plaintiff, 

Mr. Howard, and Mr. Waller, not in a public forum, and it did not 

“ ‘go beyond the parochial particulars of the given parties.’ ” 

(Workman, supra, 33 Cal.App.5th at p. 1048.)

Red Lobster makes another convoluted argument that it has

a First Amendment right “to refrain from speaking at all,” and 

“has the constitutional right not to become the ‘go-to’ place to 

discuss civil rights in the community,” and “has the right to be 

associated with its food rather than the potentially controversial 

topics of conversation of its patrons.” These rather odd assertions 

do not explain why defendant’s statement to plaintiff that he may 

not discuss civil rights in its restaurant is a matter of public 

interest.

In sum, when defendant directly addresses the public 

interest issue, it merely states that “civil rights” is an issue of 

public interest. This is a classic example of a litigant attempting 

to connect “ ‘ “a broad and amorphous public interest” ’ ” to a 

specific dispute, but, as FilmOn instructs, such a connection “is not 
15

enough.” (FilmOn, supra, 7 Cal.5th at p. 150.) Here, none of the 

considerations identified in FilmOn as constituting a matter of 

public interest exists. Neither party is in the public eye, the 

subject matter does not affect large numbers of people beyond the 

direct participants, and the activity did not occur in the context of 

an ongoing public controversy, dispute or discussion. (See id. at 

p. 145.) 

The only legal authorities defendant cites are FilmOn and 

Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 

1546, for the general proposition that section 425.16, 

subdivision (e)(4) applies to private speech and the communication 

need not be in a public forum. That is correct, but the private 

communications must concern “issues of public interest.” (Terry, 

at p. 1546; id. at p. 1547 [“ ‘the assertion of a broad and amorphous 

public interest is not sufficient’ ”].) That is all we have here, and 

consequently defendant has not demonstrated it engaged in 

activity protected by the anti-SLAPP statute. Accordingly, 

plaintiff was not required to demonstrate a probability of 

prevailing on his claims.

b. Defendant’s alternative contention

Defendant contends that if we conclude, as we do, that 

plaintiff’s claims do not arise out of defendant’s protected activity, 

we should “exercise [our] discretion to review the trial court’s grant 

of leave to amend following its sustaining of Red Lobster’s 

demurrer to all four of Plaintiff’s causes of action.” Defendant says 

this would “avoid unnecessary delay and waste of resources,” and 

that we have discretion “to treat a purported appeal from a nonappealable order as a petition for writ of mandate.” But there has 

been no “purported appeal from a non-appealable order”; the only 

appeal before us is from the court’s anti-SLAPP ruling. We are 
16

aware of no authority allowing us to review a trial court’s ruling 

sustaining a demurrer to an original complaint with leave to 

amend. The requirements for writ relief are not met here. Any 

“unnecessary delay” is a result of defendant’s choice to file an antiSLAPP motion that, predictably, was only partially successful.

DISPOSITION

The order is affirmed. Plaintiff shall recover his costs on 

appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J.

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.