Judge Andrew E. Cooper, Case Number: 24CHCV00028, Date: 2024-10-29 Tentative Ruling

MOVING PARTY: Defendant/Cross-Complainant Monocent, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff/Cross-Defendant Nima Rahmatiandani (“Plaintiff”)

RELIEF REQUESTED: Moving Defendant demurs against Plaintiff’s entire complaint.

TENTATIVE RULING: The demurrer is overruled. Moving Defendant to file its answer to Plaintiff’s complaint within 20 days.

This is a sexual harassment action in which Plaintiff alleges that he was employed by Moving Defendant beginning in December 2019 until 3/14/22. (Compl. ¶¶ 9, 12.) Plaintiff alleges that “on January 21, 2022, Plaintiff was sexually harassed by his immediate supervisor, [nonmoving defendant] Sean Kim and received an unwanted back massage. The harassment continued until Plaintiff’s resignation however, the only incident recorded by a security camera, was an unwanted back massage.” (Id. at ¶ 10.) “Plaintiff informed the Chief Executive Officer ‘CEO’ of the company who conducted no further action other than speaking with Defendant, Sean Kim. The CEO stated he had no choice but to keep Sean Kim even after receiving complaints from additional employees.” (Id. at ¶ 11.) “Prior to the initiation of this lawsuit, plaintiff filed a complaint with the California Department of Fair Employment and Housing (‘DFEH’) pursuant to the California Government Code §12900, et seq., alleging the claims described in this complaint. On January 3, 2023, the DFEH issued a ‘right to sue’ letter.” (Id. at ¶ 13; Ex. A to Compl.)

On 1/3/24, Plaintiff filed his complaint, alleging against Defendants the following causes of action: (1) Quid Pro Quo Sexual Harassment; (2) Hostile Work Environment Sexual Harassment; (3) Gender Discrimination; (4) Failure to Prevent Harassment, Discrimination, and Retaliation; (5) Negligent Hiring, Supervision, or Retention of Employee; and (6) Sexual Battery. On 6/25/24, Plaintiff served Moving Defendant with the complaint and summons.

On 7/24/24, Moving Defendant filed its cross-complaint against Plaintiff, alleging the following causes of action: (1) Defamation; (2) Intentional Interference with Prospective Economic Relations; (3) Negligent Interference with Prospective Economic Relations; (4) Breach of Employee Contract; (5) Breach of the Implied Covenant of Good Faith and Fair Dealing; (6) Fraud; (7) Trade Secret Misappropriation; (8) Tortious Interference with Contractual Relations; (9) Breach of Fiduciary Duty; (10) Unfair Competition; (11) Intentional Infliction of Emotional Distress; and (12) Negligent Misrepresentation. On 9/17/24, default was entered against Plaintiff on the cross-complaint.

On 7/25/24, Moving Defendant filed the instant demurrer. On 10/21/24, Plaintiff filed his opposition.[1] On 10/22/24, Moving Defendant filed its reply.

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action,” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e), (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Moving Defendant demurs to Plaintiff’s entire complaint on the basis that Plaintiff fails¿to allege facts sufficient to state any of the causes of action therein, rendering them fatally uncertain.

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel fails to attach any declaration describing a good faith effort to meet and confer with Plaintiff’s counsel regarding the issues raised in the instant demurrer. However, “a determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41, subd. (a)(4).)

Moving Defendant’s primary argument is that “the Complaint is barred by both its extremely overdue and late service (July 15, 2024) and the applicable statute of limitations.” (Dem. 3:24–25.) Moving Defendant contends that “the Plaintiff’s Complaint instructions clearly on their face state that all complaints shall be served within 60 days of filing, with proof of service filed within 90 days. This requirement was clearly not met.” (Id. at 5:22–25.) Moving Defendant further asserts that “the Complaint appears to have been filed on January 3, 2024, but the summons was not issued until January 4, 2024, based on the clerk’s stamp. This suggests the Complaint was not properly issued and/or served within the statute of limitations period.” (Id. at 6:13–15.)

The 1/3/23 DFEH “right-to-sue” letter explicitly states that “the civil action must be filed within one year from the date of this letter.” (Ex. A to Compl.) As Plaintiff notes in opposition, the instant action was filed on 1/3/24, exactly one year after the issuance of the letter. (Pl.’s Opp. 3:2–4.) Contrary to Moving Defendant’s contentions, the Court record reflects that the summons was issued on 1/3/24, timestamped at 6:52 PM.

As to the date of service of process, “the summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed. Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” (Code Civ. Proc. § 583.210.) Here, Plaintiff served Moving Defendant with the complaint and summons on 6/25/24, within the three years of the filing of the complaint. The proof of service was filed on 7/15/24, which is also within the statutory time limit.

Based on the foregoing, the Court finds that Plaintiff’s complaint is not time-barred. Accordingly, the demurrer is overruled on this ground.

Moving Defendant argues that “Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action because it only the complaint only vaguely alleges a single incident of an ‘unwanted back massage’ without providing specific details about the nature, severity, or context of the incident.” (Dem. 5:1–4.) Moving Defendant further argues that “a single incident, without substantially more, is completely insufficient under applicable standards and law to meet the ‘severe or pervasive’ standard required for a hostile work environment claim under FEHA. The complaint also fails to allege specific facts showing defendant’s intent, which is a crucial element of a sexual battery claim.” (Id. at 5:8–13.)

Plaintiff argues in opposition that “a Plaintiff need only set forth facts of his case with reasonable precision and particularity sufficient to acquaint the defendant of the nature, source, and extent o[f] the plaintiffs claim. … [Here,] Plaintiff has alleged each and every cause of action in its entirety including the elements Defendant states were not sufficiently stated. See Plaintiff’s Complaint emphasizing paragraphs 5, 10-12,15, 22, 42. Plaintiff’s sexual battery claim states in paragraph 49 the element of intent. Thus, Plaintiff’s complaint does state sufficient facts to support each and every allegation.” (Pl.’s Opp. 3:17–26.)

The Court agrees, and further notes that Moving Defendant does not provide any legal authority supporting its contention that Plaintiff’s causes of action require a heightened pleading standard. The Court reminds Moving Defendant that at the demurrer stage, the Court does not weigh the merits of a plaintiff’s factual allegations, but whether they are sufficient to state a cause of action. Based on the foregoing, the Court finds that Plaintiff’s causes of action are sufficiently pled. Accordingly, the demurrer is overruled on this ground.

The demurrer is overruled. Moving Defendant to file its answer to Plaintiff’s complaint within 20 days.

[1] The Court notes that Plaintiff’s opposition was filed three court days late. (Code Civ. Proc. § 1005, subd. (b).) Notwithstanding the foregoing, the Court exercises its discretion under Rule 3.110 of the California Rules of Court, to excuse the untimely-filed opposition, as Moving Defendant has had the opportunity to file a reply. Plaintiff is advised to take note of the filing deadlines under the statute, as future filings made past the statutory deadlines may result in the Court declining to consider the late-filed papers at the hearing.¿