A California appellate panel has ruled Beverly Hills lawyer John Birke, who unsuccessfully sued a Lowe's store for allegedly not enforcing COVID-19 rules, does not have to pay the retail chain's legal fees for fighting the suit, which a lower court judge deemed frivolous.
The March 3 decision was penned by Associate Justice Anne Egerton, with concurrence from Associate Justice Luis Lavin and Justice Lee Edmon, of the California Second District Court of Appeals. The decision was a mixed bag for Birke in his dispute with Los Angeles County Superior Court Judge Melvin Sandvig and the Lowe's home improvement retail chain.
Birke lodged a lawsuit in 2020 against Lowe's, which is headquartered in Mooresville, N.C.
According to the suit, in June 2020 Birke was at a Lowe's store in West Hills, a Los Angeles suburb. At that time, an order from Gov. Gavin Newsom required face coverings in public indoor settings, as part of the state's strategy to reduce the spread of Covid-19.
Birke said he asked an unmasked male customer how the customer was allowed to enter the store without a covering. The customer allegedly swore at Birke to leave him alone and walked away, with Birke then "tracking" the customer through the store while trying to phone police. At one point, the customer spat in Birke's masked face. Birke claimed he asked employees to call police or stop the customer from leaving, but they did not do so. However, Birke acknowledged an employee at one point did tell him and the customer to "move away from each other."
Birke alleged Lowe's was negligent, created a public nuisance and committed fraud by falsely advertising customer health was a priority. He claimed Lowe's had no signs or employees posted at the entrance telling customers masks were required. Birke said he suffered emotionally from worrying whether he had contracted Covid from the customer.
Superior Court Judge Sandvig concluded the state order did not command stores to enforce the mask mandate and Birke did not catch the virus from the customer, whom he never proved had Covid anyway. Sandvig declared the suit frivolous and dismissed it. As a sanction, Sandvig ordered Birke to pay Lowe's $94,704 for its attorney fees and other costs incurred fighting the suit.
Birke appealed, with Justice Egerton agreeing with the dismissal, but not with the sanction.
"The unmasked man intentionally spit on plaintiff after plaintiff — not the unmasked man — made the first move, so to speak, and continued to 'track' him through the store, despite the man’s rudely expressed desire that plaintiff leave him alone. No reasonable retailer could have anticipated the scenario that unfolded," Egerton said.
Egerton continued, "Not only did plaintiff purposefully engage with the unmasked shopper despite his fear of catching a contagious virus from him, but the unmasked shopper’s reaction to plaintiff’s pestering by spitting in plaintiff’s face could be described only as extraordinary."
However, Egerton determined Birke did pursue his suit with sincerity, not just to get a quick settlement, as alleged by the retailer.
Lowe's had told Egerton that around the time Birke visited the store, Birke played softball with some players who allegedly did not wear masks, and Birke sometimes did not allegedly wear one himself while playing. Also, softball parks were closed at that time because of Covid, Lowe's said. In addition, Birke came to sue some of these fellow players in December 2020 over Covid, according to Lowe's.
Egerton acknowledged Birke "can be overzealous," but did not find the softball case pertinent. Further, Egerton pointed to evidence that showed Birke was active in litigating his Lowe's suit, rather than filing it and waiting for a settlement.
Birke was represented for the first several months of his litigation by Michael Sohigian, of the Law Office of Michael Sohigian, of Beverly Hills. Sohigian then left the case and Birke started representing himself. Birke has been listed as a lawyer in Sohigian's firm.
Lowe's has been defended by attorneys Stephanie Forman and Eric B. Kunkel, of Tharpe & Howell, of Los Angeles.