LOS ANGELES (Legal Newsline) – It’s possible a Lowe’s employee can be found liable for one customer spitting on another, a federal judge has ruled.
Los Angeles judge Stephen Wilson says there “exists at least a possibility” that Levi Renderos, an assistant manager at the Lowe’s in West Hills, could be found liable under state law for the emotional distress of plaintiff John Birke.
Wilson’s decision rejects the argument by Lowe’s that Renderos was only added as a defendant in an attempt to defeat diversity jurisdiction and keep the case in a California state court.
Thus, Birke’s lawsuit is being remanded back to Los Angeles Superior Court.
“Defendant Renderos is not a sham defendant, and his residency must be considered for jurisdictional purposes,” Wilson’s order says.
Birke’s lawsuit blames Lowe’s for an incident earlier this year when a fellow shopper was not forced to wear a facemask.
Birke got involved and tried to call the cops on the shopper. In retaliation, the shopper spit in his face four times, he says.
The lawsuit charges Lowe’s with fraud, public nuisance and negligence and seeks at least $20 million.
“He makes clear over and over again that what he is really suing over is the failure of Lowe’s – and Renderos – to protect him from being spit on by an unknown third party in a confrontation Birke himself instigated,” attorneys for Lowe’s wrote in opposition to Birke’s motion to remand.
“And as to all defendants – but most certainly as to Renderos – plaintiff’s complaint fails on all counts because they are premised on the alleged failure of Lowe’s and Renderos to enforce emergency mask orders and thus protect him from COVID-19. They fail because he never got COVID-19 and alleged third party tort did not occur as the result of any failure to protect him from COVID-19.”
Birke’s lawyer filed the complaint first without Renderos as a defendant but dismissed it in order to re-file to add Renderos.