Judge Cary Nishimoto, Case 21STCV11135 2023-03-02 Tentative Ruling

Judge: Cary Nishimoto, Case: 21STCV11135, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCV11135 Hearing Date: March 2, 2023 Dept: SWE

ISABELLA CARREON vs MICHAEL ACOSTA GABRIEL BARAJAS TIFFANY BARAJAS

21STCV11135

Defendant Michael Acosta’s parents were dismissed at trial on 2.24.2023. The complaint alleges three causes of action: count one for intentional tort against all three defendants, Michael Acosta, his parents Gabriel Barajas and Tiffany Barajas; counts two and three for general negligence against defendants Michael Acosta, Gabriel Barajas and Tiffany Barajas. According to the complaint, the alleged incident occurred when plaintiff was 10 years old.

Plaintiff was born on 12.23.2001 and at the time of trial was age 21. The complaint was filed was filed on 3.23.2021, and If plaintiff became an adult in 2019, the statute of limitations raised as an affirmative defense fails. CCP §340.1(a) provides that “childhood sexual assault” has a limitations period of 22 years for filing an action from the date that plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonable should have discovered the psychological injury or illness occurring after the age of majority was caused by the sexual assault whichever period expires later for any of the following actions: “(1) an action against any person for committing an act of childhood sexual assault.” (3) “an action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” By statute, CCP §352(a) states that the period of minority is “not part of the time limited for the commencement of the action.” This action was timely filed. Various affirmative defenses listed in the answer to complaint are not relevant; CCP §338; CCP §337, 4 years for contracts; CCP §338(a), 3 years for an action upon a liability created by statute, other than a penalty or forfeiture; CCP §339, 2 years for an oral contract; Civil Code §3439.09, voidable transactions act. CCP §338(a) is a general statute, CCP §340.1(a) is a specific statute relating to childhood sexual abuse.

Defendant Michael Acosta did not appear for trial. Defendant Acosta and his family moved away shortly after the incident 15 years ago. The only witness to appear and testify at trial was plaintiff. CACI 1306 “Sexual Battery”, is based on Civil Code §1708.5, which provides that it is committed when the defendant acts with the intent to cause a harmful or offensive contact with the intimate part of another, and a sexually offensive contact with that person directly or indirectly results. Plaintiff did not consent to the touching; and that plaintiff was harmed by defendants’ conduct. “Offensive conduct” means contact that offends a reasonable sense of personal dignity”. Civil Code §§1708.5 also defines “intimate part” and “offensive contact” and in subdivision (e) provides for costs among other remedies.

Plaintiff testified about the assault: defendant put his hand on plaintiff’s thigh, then undid plaintiff’s pant and touched her private part, undid his own pants and asked if plaintiff had ever seen her dad’s private parts. Plaintiff looked away, defendant unbuttoned plaintiff top and put his hand on her chest. Plaintiff was so scared, she couldn’t move but ultimately got up and left. Two days later plaintiff told Emily, then plaintiff saw defendant and his sister Miranda in front of defendant’s residence and he apologized to plaintiff. Plaintiff had nightmares until age 14 and at age 16 told her parents who filed a police report but nothing came of it except “insufficient evidence”. Plaintiff testified that she felt ashamed, embarrassed, terrified and guilty for the incident. Plaintiff no longer suffers nightmares. The court finds based on the evidence that defendant’s conduct was deliberate, willfull and intentional, that he knew it was wrong when he assaulted plaintiff. The court finds plaintiff to be a very credible witness. Plaintiff never sought therapy although offered but she presently believes that she will seek therapy to see if it helps.

In this case, it can not be both negligence and an intentional tort. Civil Code §1714.1 makes damages for intentional acts of minors that cause harm limited to $25,000 for the act itself and $25,000 for medical bills. There is no evidence of medical or therapeutic costs incurred. Although plaintiff indicates she intends to seek therapy, intention is not substantial evidence nor is there evidence of the cost of such therapy. There is no evidentiary basis for punitive damages since there is no evidence of defendant’s ability to respond in damages. The remaining cause of action is that of Count One Intentional Tort. Civil Code §1714.1 limits damages to $25,000.00 for the act itself and the court finds and awards plaintiff $25,000.00. Costs are to be pursuant to noticed motion.

ATTORNEY MARCUS GOMEZ ATTORNEY JASON J. ALLISON

Law Office of Marcus Gomez Law Office of Jason J. Allison

12749 Norwalk Blvd., Suite 108 821 Park View Ct.

Norwalk, CA 90650 Duarte, CA 91010