Onokohwomo v. Sterling Jewelers, Inc.

ONOME ONOKOHWOMO, an individual, Plaintiff-Appellant, v. STERLING JEWELERS, INC., DBA Kay Jewelers, a Delaware corporation; ARNULFO DIAZ; DOES, 2 through 20, inclusive, Defendants-Appellees.

No. 21-55311

United States Court of Appeals, Ninth Circuit

June 23, 2022

NOT FOR PUBLICATION

Argued and Submitted March 7, 2022 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:20-cv-00261-CJC-SK Cormac J. Carney, District Judge, Presiding

Before: BERZON and FRIEDLAND, Circuit Judges, and KORMAN ^[**] District Judge.

MEMORANDUM ^[*]

Onome Onokohwomo appeals the district court's grant of summary judgment in favor of Defendants on his claims of racial discrimination under the California Unruh Act, defamation and intentional infliction of emotional distress. We affirm in part, reverse in part, and remand for further proceedings.

1. We affirm the dismissal of Onokohwomo's claim that he was denied access to the interior of the Kay Jewelers store in violation of the Unruh Act. Onokohwomo provided no evidence that other customers were served inside the store. Defendants provided evidence that, given the store's layout customers are ordinarily served outside the store. Onokohwomo has not established a genuine dispute of material fact concerning whether he was excluded from the store for discriminatory reasons.

2. We reverse the district court's grant of summary judgment with respect to Onokohwomo's claim that he was denied the chance to try on diamond chain necklaces in violation of the Unruh Act.

i. The evidence related to whether the store carried diamond chain necklaces is limited to verbal assertions. Onokohwomo stated, more than once, that he observed diamond chain necklaces in the store's display cases; two store employees stated that the store did not carry such necklaces. The district court erred in granting summary judgment to Defendants on the ground that the store did not carry diamond chain necklaces, as so ruling necessarily entailed a credibility assessment inappropriate on summary judgment. See, e.g., Munden v. Stewart Title Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021).

ii. Onokohwomo has created a genuine dispute over whether he was denied the chance to try on diamond chain necklaces on account of his race. The record contains evidence that Diaz, a store employee: (1) refused to show Onokohwomo the diamond chain necklaces Onokohwomo saw in the display cases; (2) falsely claimed that Onokohwomo met up with another Black man at the escalators after the alleged theft; (3) falsely described Onokohwomo as 6'1 or 6'2 even though Onokohwomo is actually 5'7, three inches shorter than Diaz; and (4) used stereotypically Black vernacular during their interactions, as if Diaz were "trying to act black" or "talk like a hip-hop guy." In light of this evidence, a jury could reasonably infer that Diaz's refusal to show Onokohwomo the chains was racially motivated. See, e.g., Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1153 (9th Cir. 2006).

3. We affirm the dismissal of Onokohwomo's defamation claims regarding statements made to: (1) the friends and family members of Kay Jewelers' store employees, (2) Kay Jewelers' internal risk management team, and (3) a group of affiliated jewelry stores in Southern California.

In California, a defamatory statement that does not refer to the plaintiff by name sufficiently identifies the plaintiff if it is capable of being understood as referring to the plaintiff and there is evidence, direct or circumstantial, that the statement was "so understood by a third party." SDV/ACCI, Inc. v. AT&T Corp., 522 F.3d 955, 959-60 (2008); Dickinson v. Cosby, 37 Cal.App. 5th 1138, 1162-63 (2019). Contrary to Onokohwomo's assertion, this test applies even if the ambiguous statement refers to only one person, as opposed to a group or class of persons. See, e.g., De Witt v. Wright, 57 Cal. 576, 577-78 (1881).

Here, none of the three categories of statements outlined above referred to Onokohwomo by name. The statements made to the friends and family members of store employees did not provide a physical description of Onokohwomo, or any other information that might have reasonably identified him. So Onokohwomo has not adduced sufficient evidence to infer that the friends and family members of store employee identified him as the subject of the statements.

The statements made to Kay Jewelers' internal risk management team and the group of affiliated stores did provide a brief description of Onokohwomo. And Onokohwomo has achieved some level of celebrity as an Afrobeats musical artist. But, on the undisputed record, the store employees involved in the incident and the police officers who arrived at the scene and arrested Onokohwomo did not know of that celebrity. Onokohwomo provided no evidence that the internal risk management team and the employees of the group of affiliated stores knew of his celebrity status or otherwise would have been able to identify him based on his physical description alone.

Onokohwomo contends that because Defendants' statements included details regarding the date and location of the alleged theft, his identity could have been ascertained if the recipients had looked up the police report. We need not decide whether, under California law, the availability of extrinsic information that postdates an allegedly defamatory statement can transform an ambiguous statement into one that identifies the plaintiff. Even if it can, Onokohwomo has not adduced sufficient direct or circumstantial evidence to suggest that the recipients of Defendants' statements took steps to ascertain his identity, by consulting the police report or otherwise.

4. We reverse the dismissal of Onokohwomo's defamation claim regarding statements made to an employee of Kevin Jewelers, an unaffiliated jewelry store in the Montebello Town Center Mall.

The record establishes that Fern, a Kay Jewelers store manager, spoke to an employee of Kevin Jewelers about the incident the day after the alleged theft, and the Kevin Jewelers employee told Fern "that the plaintiff did go to her store also." The record also contains an internal Kevin Jewelers email. The email describes a young, mid-20s Black man with a thin build who was accompanied by a young girl and a baby. It explains that the man visited Kevin Jewelers twice on the day of the alleged theft and includes details about the alleged theft that could not have been directly perceived by a Kevin Jewelers employee, such as a description of the merchandise allegedly stolen as well as details about how and when the alleged theft occurred. Although the email incorrectly uses female pronouns to describe the Kay Jewelers associate who served Onokohwomo, it accurately summarizes Onokohwomo's appearance and movements on the day of the alleged theft.^[1]

There is no direct evidence as to what Fern said to the Kevin Jewelers employee during their conversation, but a plaintiff bringing a defamation claim need not specify the precise words a defendant used. Okun v. Superior Court, 29 Cal.3d 442, 458 (1981). Drawing all reasonable inferences in Onokohwomo's favor, as we must at the summary judgment stage of review, Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020), we conclude the record contains sufficient evidence for a jury to infer that Fern described the alleged theft to the Kevin Jewelers employee, and that the employee had sufficient extrinsic information about Onokohwomo to determine that the alleged thief and the person who had been seen twice at Kevin Jewelers were the same individual.

These inferences, if made, could suffice to make out a claim that Fern defamed Onokohwomo. Peterson v. Rasmussen, 47 Cal.App. 694, 698 (1920).

5. We affirm the dismissal of Onokohwomo's defamation claim regarding statements made to mall security at the Montebello Town Center Mall.

The district court dismissed this claim on the ground that the statements to mall security were privileged under California Civil Code section 47(b). The section 47(b) privilege is aimed at communications made to government officials and does not cover statements made to private parties unless: (1) the statements were directed at preparing for, assisting, or eliciting government action, and (2) the statements bear a "necessary or useful" relationship to the government action, above and beyond merely being "related in some way" to the government action. Argentieri v. Zuckerberg, 8 Cal.App. 5th 768, 785-86 (2017); Hagberg v. Cal. Fed. Bank, 32 Cal.4th 350, 360, 362 (2004); Chabak v. Monroy, 154 Cal.App.4th 1502, 1506-08 (2007). The focus of this inquiry is on the "aim of the communication" at the time it was made. Hagberg, 32 Cal.4th at 368. The burden falls on the defendant to prove that an allegedly defamatory statement "was made on a privileged occasion." Taus v. Loftus, 40 Cal.4th 683, 720-21 (2007).

The evidence concerning Defendants' motivation for contacting mall security came from store manager Jennifer Ropke, who coordinated the store's outreach to both law enforcement authorities and mall security. Ropke indicated that, although store policy requires employees to contact law enforcement authorities directly, mall security is contacted too so that mall security can "see if they can find them. If they - let's say someone ran, [mall security] can go and find them, run after them, I guess." So there is evidence that mall security is contacted to locate and detain the suspect. California Penal Code section 490.5(f)(1) authorizes a merchant to "detain a person for a reasonable time" and "in a reasonable manner" when the merchant "has probable cause to believe the person to be detained is attempting to...