Judge: Alison Mackenzie, Case: 23STCV22876, Date: 2024-03-18 Tentative Ruling
Case Number: 23STCV22876 Hearing Date: March 18, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Defendant’s Demurrer to Plaintiff’s Complaint.
BACKGROUND
PEDRO SANTOS (“Plaintiff”) is a former warehouse
worker who filed this employment case against his former employer UMA
ENTERPRISES, INC. (“Defendant”) and his former supervisor VICTOR SIERRA. The causes of action are: 1. Battery; 2.
Assault; 3. Sexual Battery (Civil Code § 1708.5); 4. Discrimination In
Violation Of Gov’t Code §§ 12940 Et Seq.; 5. Harassment In Violation Of Gov’t
Code §§ 12940 Et Seq.; 6. Retaliation In Violation Of Gov’t Code §§ 12940 Et
Seq.; 7. Failure To Prevent Discrimination, Harassment, And Retaliation In
Violation Of Gov’t Code § 12940(K); 8. Violation Of The Ralph Civil Rights Act
(Civil Code § 51.7); 9. Violation Of The Tom Bane Civil Rights Act (Civil Code
§ 52.1); 10. Retaliation (Lab. Code §§ 232.5, 1102.5 And 1102.6); 11. Wrongful
Termination In Violation Of Public Policy; 12. Negligent Supervision And
Retention Of Unfit Employee; and 13. For Declaratory Judgment.
Defendant demurs to the first cause of action for
battery, second cause of action for assault, third cause of action for sexual
battery, and ninth cause of action for violation of the Tom Bane Civil Rights Act.
Plaintiff opposes the demurrer.
ANALYSIS
Whether Defendant is
Allegedly Liable for the Conduct of its Employee as it Relates to Battery, Assault,
and Sexual Battery
Plaintiff’s Complaint alleges that his supervisor, Defendant
Sierra, verbally threatened Plaintiff and repeatedly raped him. Plaintiff alleges
that Defendant took no action against Defendant Sierra after Plaintiff
complained about the conduct and instead terminated Plaintiff. In its demurrer,
Defendant contends that Defendant Sierra’s alleged battery and assault was too
far outside of the scope of warehouse supply work to be any basis for employer
liability against Defendant. Plaintiff counters by arguing that the Complaint
sufficiently pleads facts to show that Defendant ratified the unlawful conduct.
The Court agrees with Defendant. Ratification, like
agency, may be generally pled. C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1112. Under a
ratification theory, an employer may be liable for an employee’s act where the
employer ratified an unauthorized tort by failing to investigate or respond to
charges that an employee committed an intentional tort. Id., at 1010.
Plaintiff’s Complaint contains sufficient allegations
that Defendant ratified Defendant Sierra’s alleged sexual misconduct. The
Complaint alleges that Defendant Sierra was an employee and agent of Defendant
and that that Defendant Sierra raped Plaintiff and threatened him with violence.
(Compl., ¶¶ 24-26.) Plaintiff alleges he complained about Defendant Sierra’s
conduct to Defendant’s Director Operations, but Defendant took no action other
than to fire Plaintiff. (Id., ¶ 29.) Plaintiff alleges that Defendant’s
non-action against Defendant Sierra constituted ratification of his conduct. (Id.,
¶¶ 41, 50, 57.)
The Court therefore overrules the demurrer to the
first, second, and third causes of action on this ground.
Whether the Complaint Was
Filed Past the Allowed Statute of Limitations as to the First, Second, and
Ninth Causes of Action.
Plaintiff alleges that he was 17 at the time he was attacked
by Defendant Sierra while employed by Defendant from May 2020 to November 2020.
(Id., ¶¶ 22, 24.) Defendant argues that the first, second, and ninth
causes of action in the Complaint all have a two-year statute of limitations,
and that the filing of these claims in September 2023 means such claims are
time-barred.
“'A demurrer on the ground of the bar of the statute
of limitations will not lie where the action may be, but is not necessarily
barred’.... It must appear clearly and affirmatively that, upon the face of the
complaint, the right of action is necessarily barred.... This will not be the
case unless the complaint alleges every fact which the defendant would be
required to prove if he were to plead the bar of the applicable statute of
limitation as an affirmative defense." Lockley v. Law Office of
Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881. “On
or about” allegations do not reveal the ground of the statute of limitations. Childs
v. State (1983) 144 Cal.App.3d 155, 160.
Code of Civil Procedure Section 340.1 sets forth the statute
of limitations for bringing actions regarding childhood sexual abuse. A.M.
v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1254-55. See
also Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208
(providing additional statutory background and interpretation). Section 340.1
of the Code of Civil Procedure, which applies to childhood sexual abuse, provides
the time limits for commencement of the action as being (1) within 22 years of majority
or (2) five years of the date the plaintiff discovers or reasonably should have
discovered injury or illness, whichever expires the latest.
The Complaint pinpoints no specific date, but instead
alleges approximate dates, such that the statute of limitations cannot be
calculated from the face of the Complaint filed 9/21/23. E.g., Complaint, ¶¶ 24 (“In or around
September 2020, SIERRA forcibly and violently attacked Plaintiff….”) and 26 (“In
or around November 2020, SIERRA again raped Plaintiff in the bathroom….”).
Alternatively, the statute of limitations applicable
to alleged minor victims of sexual abuse cannot be calculated from the
Complaint’s face, because it alleges that Plaintiff was 17 at the time, without
alleging Plaintiff’s birthday or any precise dates of incidents, such that Code
of Civil Procedure Section 340.1 applies, and cannot be discounted as to the extending
of the statute of limitations.
For both of those reasons, the Court overrules the
demurrer on this ground.
CONCLUSION
The demurrer is overruled. Twenty days to answer.