Judge Bruce G. Iwasaki, Case Number: 23STCV13456, Date: 2023-12-14 Tentative Ruling

Tentative Ruling: The Demurrer to the Complaint is sustained as to the first, sixth and tenth causes of action against Defendant MB Salon, Inc. The motion to strike is denied.

This case arises from a sexual assault and discrimination in an employment context. Plaintiff Jane Doe (Plaintiff) sued Defendants Miakel Bishay and MB Salon Inc. (dba Miakel Bishay Salon) for (1.) sexual assault and battery, (2.) harassment in violation of FEHA, (3.) discrimination in violation of FEHA, (4.) retaliation in violation of FEHA, (5.) failure to prevent discrimination, harassment and retaliation in violation of FEHA, (6.) intentional infliction of emotional distress, (7.) negligent hiring, supervision, and retention, (8.) violation of Labor Code § 1102.5, (9.) wrongful constructive termination in violation of public policy, (10.) false imprisonment, (11.) failure to pay all overtime wages, and (12.) failure to provide all lawful meal periods and rest breaks in violation of IWC Wage Orders.

On August 15, 2023, Defendants Miakel Bishay and MB Salon Inc. demurred to the first, sixth and tenth causes of action in the Complaint. Defendants also moved to strike portions of the Complaint. Plaintiff filed an opposition to both the demurrer and the motion to strike. Defendants filed no reply.

Although the individual Defendant Miakel Bishay is identified as a demurring party, the arguments advanced do not apply to him. The Court treats Miakel Bishay as not demurring to the Complaint, and thus, only addresses the sufficiency of the challenged causes of action as to Defendant MB Salon, Inc. Miakel Bishay’s Answer to the Complaint must be filed and served no later than January 15, 2024.

The Court sustains the demurrer solely of Defendant MB Salon, Inc. to the first, sixth and tenth causes of action. The motion to strike is denied. Plaintiff shall have leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Defendant MB Salon, Inc. demurs to the first cause of action for sexual assault and battery, the sixth cause of action for intentional infliction of emotional distress, and the tenth cause of action for false imprisonment on the grounds that the doctrine of respondeat superior liability does not attach to conduct that falls outside the course and scope of employment.

Under the doctrine of respondeat superior, “an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) The doctrine is a departure from the general rule of tort liability based on fault. (Ibid.) Under certain circumstances, the employer may be subject to this form of vicarious liability even for an employee's willful, malicious, and criminal conduct. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–299.)

“For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee’s tortious conduct was committed within the scope of employment. [Citation.] ‘A risk arises out of the employment when “in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” ’ ” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at 209; Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521 [For the employer to be liable for an intentional tort, the employee's act must have a “ ‘causal nexus to the employee's work.’ ”].)

The term “ ‘scope of employment’ ” is interpreted broadly, and the employer's liability extends beyond his or her actual or possible control of the employee to include risks inherent in or created by the enterprise. (Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499, 505.) The fact an employee is not engaged in the ultimate object of his or her employment at the time of the wrongful act does not preclude attribution of liability to an employer. (Ibid.)

However, an employer will not be held liable under the respondeat superior doctrine for conduct that occurs when the employee “substantially deviates from the employment duties for personal purposes” or acts out of personal malice unconnected with the employment, or where the conduct is “ ‘so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citations.]’ ” (Farmers, supra, 11 Cal.4th at pp. 1003–1005.)

For example, in Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, the court considered whether a deputy sheriff's tortious acts – “lewdly proposition[ing] and offensively touch[ing] other deputy sheriffs working at the county jail” – were within the scope of his employment. (Id. at p. 997.) Our Supreme Court concluded they were not, explaining that if an employee’s tort is “ ‘personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense’ ” will not bring the tort within the scope of employment. (Id. at p. 1007.) In that case, the deputy’s requests for sexual favors and inappropriate touching “were motivated for strictly personal reasons unrelated to the guarding of inmates or the performance of any other duty of a deputy sheriff at a county jail,” and thus were not within the scope of the employment. (Id. at p. 1007.)

Here, the allegations show that Plaintiff began working as a hairdresser at Defendant MB Salon starting in December 2021. (Compl., ¶ 14(c).) From January 2022 to June 2022, Plaintiff worked with Defendant Bishay approximately five days per week. (Compl., ¶ 14(d).) Then, on July 21, 2022, Defendant Bishay invited Plaintiff to his parent’s house where he allegedly raped her. (Compl., ¶ 14(g)-(i).) The Complaint alleges that Defendant Bishay continued to make sexual comments and advances directed at Plaintiff until October 25, 2022, when Plaintiff resigned her position. (Compl., ¶¶ 14(k)-(q), 15(b).)

The issue of scope of employment is generally a question of fact for the jury. (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289.) However, when the facts are undisputed and no conflicting inferences are possible, the issue may be decided by the court as a question of law. (Ibid.)

Based on the foregoing allegations, the Complaint – as a matter of law – does not allege facts that demonstrate the conduct arose out of the scope of Defendant Bishay’s employment. That is, the allegations do not show that sexual assault, false imprisonment, and the intentional infliction of emotion distress (as result of these torts) by a hairdresser’s manager/supervisor are risks that are typical or broadly incidental to the operation of a hair salon business.

Accordingly, the demurrer to the first, sixth and tenth causes of action against Defendants MB Salon, Inc. are sustained.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿(Code Civ. Proc., § 436.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

Defendants also move to strike portions of the Complaint that reference Defendant Miakel Bishay’s alleged drug and alcohol use. Defendants move to strike these allegations, which are alleged on information and belief, on the grounds that the references are irrelevant, false, and improper.

In opposition, Plaintiff argues that these allegations are “crucial” because they inform on the “outrageousness” of Defendant Bishay’s conduct: “Willingly and knowingly being at work while under the influence of drugs and alcohol also show the reckless and callous nature of Bishay’s conduct.” (Opp. 6:9-11.)

Although these allegations are certainly not “crucial” to any specific claim, these allegations – if proven true – may be relevant to the evaluating Defendant’s underlying conduct. Alternatively, these allegations provide some context to the conduct arising under the Complaint. Thus, at the pleading stage, the Court declines to find that these allegations are irrelevant, false, or otherwise improper.

The demurrer to the Complaint is sustained as to first, sixth and tenth causes of action against Defendant MB Salon, Inc. The motion to strike is denied. Plaintiff shall have leave to amend. An amended complaint shall be filed and served by January 15, 2024.