LOS ANGELES (Legal Newsline) – A man spit on at Lowe’s by a customer not wearing a face mask says the fate of his lawsuit should be determined by a California state court judge.
John Birke’s lawyer on Oct. 22 filed opposition to recent moves by defendant Lowe’s, which is accused of not forcing the unidentified spitter to comply with Gov. Gavin Newsom’s face mask orders.
The lawsuit says Birke suffered a fear that he could have caught a disease like COVID-19, but Lowe’s in a motion to dismiss notes Birke has shown no symptoms.
The first part of strategy for Lowe’s was to remove the case to Los Angeles federal court.
“Before the court even considers Defendants’ motions to dismiss, due process requires a ruling on Plaintiff’s motion to remand to the Los Angeles Superior Court,” wrote Birke’s attorney, Michael Sohigan of Beverly Hills.
Birke is hanging its hopes on claims being sustained against a Lowe’s employee who is also a citizen of California to defeat the claim of Lowe’s that diversity jurisdiction exists.
In addressing the motion to dismiss, Birke says his complaint adequately pled plausible claims.
“Plaintiff’s allegations detail the materially false oral and printed statements that ‘our customers’ health is our priority during (the COVID-10 pandemic)’ and ‘Lowe’s complied with all applicable recommendations to protect the public and its employees,’” Sohigan wrote.
“While there, Plaintiff was attacked after asking a maskless male shopper, from a distance, how he got into the store without a mask, since California law then and now requires masks to be worn in all indoor venues open to the public.”
In an Oct. 15 motion to dismiss, Lowe’s calls the case of Birke an “opportunistic lawsuit” that “runs afoul of a host of barriers precluding him from ever recovering relief.”
Birke says on June 28 he spotted a Lowe’s customer not wearing a face mask, in violation of Newsom’s COVID-19 directives. He claims he asked Lowe’s employees to force the man to comply with the law but they would not do so.
Birke also says he tried to call the cops but could not reach them. In retaliation, the mask-less shopper spit in his face four times, he claims.
The lawsuit charges Lowe’s with fraud, public nuisance and negligence and seeks at least $20 million.
“(E)xposure does not necessarily mean harm will ensue,” attorneys for Lowe’s wrote in their motion.
“Birke has admitted he tested negative for COVID-19. He can therefore never suffer the negative effects of the virus as a result of the incident, let alone produce a reliable medical or scientific opinion he will suffer those effects.”
Further, the company argues it was not obligated by the June 18 face mask order “to do anything, including force its customers to wear a mask.” The order, Lowe’s says, does not include any language that directs businesses to enforce the mask requirement.
And given that the order was issued under the California Emergency Services Act, Lowe’s should enjoy immunity from any liability, its lawyers say. That’s because immunity usually afforded the State during an emergency is extended to private persons called upon to carry out measures intended to quell an emergency, Lowe’s says.
“If Lowe’s was duly impressed into service by the emergency Mask Order (i.e., charged with enforcing it), any action or failure to act by Lowe’s in carrying out, complying with or attempting to comply cannot give rise to civil liability,” the motion says.
“Thus, actions taken by Lowe’s to encourage customers to comply with the order, and decisions made by Lowe’s as to when and how to enforce the order in the absence of specific guidance from the state, cannot subject it to liability.”