Judge: Deirdre Hill, Case: 23TRCV00067, Date: 2023-04-18 Tentative Ruling

Case Number: 23TRCV00067    Hearing Date: April 18, 2023    Dept: M

Hearing Date:                         April 18, 2023

Moving Parties:                      Defendant Inner City Education Foundation

Responding Party:                  None

Demurrer to Complaint

The court considered the moving papers.  No opposition was filed.

RULING

            The demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the complaint and each of the causes of action.

BACKGROUND

On January 10, 2023, plaintiff Hector Gutierrez (self-represented) filed a complaint against defendant Inner City Education Foundation for (1) general negligence, (2) intentional tort, and (3) sexual assault and battery. 

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context.  Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

            Defendant Inner City Education Foundation demurs to the complaint and each of the causes of action on the grounds that they fail to state sufficient facts to constitute a cause of action and are uncertain; the court has no jurisdiction of the subject of the causes of action; and there is another action pending between the same parties on the same cause of action.

            In the complaint, plaintiff alleges that he was hired as a janitor and building maintenance worker by defendant.  Plaintiff worked on school grounds at Inglewood Middle Charter Academy at 304 E. Spruce Street, Inglewood.  On February 14, 2012, he was working at the school, when he received a violent kick (assault, battery) to his groin by the school principal (Doe 4).  Plaintiff did not request nor consent to being kicked in his genitalia.  He also alleges that “[s]till in shock and in pain from the grotesque kick to his genitalia, numerous staff members ridiculed Plaintiff by inappropriately laughing out loud, some pointing at Plaintiff while laughing; others were reenacting the kick to Plaintiff’s groin they witnessed.”  Plaintiff suffered serious immediate and long-term injuries as a result of the sexual assault and battery.

            Defendant argues that the complaint is barred by the statute of limitations and by worker’s compensation exclusivity.

            Statute of limitations

            The statute of limitations for assault and battery is two years.  CCP §335.1.  The two-year period starts to run when the plaintiff knows or reasonably should know of the injury.

            Defendant notes that plaintiff alleges that he is excused from complying from the Gov. Claims Act because of “Assembly Bill 210.”  Defendant asserts that AB 210, codified as Welf. & Inst. Code §18999.8 addresses the establishment of a homeless adult and family multidisciplinary personnel team and argues that it has nothing to do with excusing compliance with the Gov. Claims Act.  Defendant notes that if plaintiff is alleging AB 218, codified as CCP §340.16, it does not apply because the complaint alleges that he was working as a janitor when he was allegedly kicked in the groin, which was not childhood sexual assault.

            The court finds that the causes of action are barred by the two-year statute of limitations and plaintiff has not alleged facts to show tolling.

            Worker’s compensation

            As a general rule, California’s Workers’ Compensation Act provides the exclusive remedy for injuries sustained in the course of employment.  Labor Code § 3600(a); Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001 (“As a general rule, an employee who sustains an industrial injury ‘arising out of and in the course of the employment’ is limited to recovery under the workers’ compensation system.”) (citations omitted).  

            Although not addressed by defendant, statutory exceptions to this general rule exist, including Labor Code §3601(a)(1) and §3602(b)(1).  Labor Code §3601(a)(1) states:  “Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases:  (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.”

Labor Code §3602(b)(1) provides:  “An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:  (1) Where the employee’s injury or death is proximately caused by a willful physical assault by the employer.”   

“An assault in the workplace is compensable under the workers’ compensation laws where, as here, ‘the subject matter of the dispute involves the work itself.’  If an injury is compensable under the workers’ compensation laws, then recovery under those laws is generally the worker’s only remedy against both his coworkers and his employer.  An exception to the exclusive remedy rule is provided in section 3601(a)(1), which allows a civil suit against another employee for injury or death ‘proximately caused by the willful and unprovoked physical act of aggression of the other employee.’”  Soares v. City of Oakland (1992) 9 Cal. App. 4th 1822, 1825.   In Hart v. Nat’l Mortgage & Land Co. (1987) 189 Cal. App. 3d 1420, 1432, the court determined that “[The plaintiff] Hart may state a cause of action by alleging [employer] National was aware of [employee’s] acts in jumping on, grabbing and pinching him, and did nothing to discipline him.” 

Defendant argues that because plaintiff alleges that he was employed by defendant at the time of the alleged incident, his exclusive remedy is through worker’s compensation.

Defendant asserts that on June 27, 2012, plaintiff filed a worker’s compensation case against defendant for injuries to his wrist and back.  On February 14, 2022, plaintiff filed another worker’s compensation case for psychiatric injury.  On January 12, 2023, plaintiff filed an Application for Adjudication to include the alleged kick to his groin.  In that application, he alleges:  “The worker was doing his regular duties when he was kicked in the groin by the principle [sic] during school hours on February 14, 2012.  In retrospect beginning 3 weeks or so later after the kick applicant believes depression and other factors caused by the assault unbeknownst to him has caused him to become morbidly obese.”  See Request for Judicial Notice.

As to whether the worker’s compensation exclusivity bars the complaint or an exception applies, plaintiff alleges that he was employed by defendant and that the “kick” by the principal occurred while he was working.  Plaintiff has not sufficiently alleged facts to support that an exception applies.  Further, plaintiff has an ongoing worker’s compensation case, as defendant shows. 

1^st cause of action for negligence

The court finds that the claim is barred by the statute of limitations as stated above.  Also, plaintiff has not alleged facts to show negligence.  Rather, plaintiff alleges that the principal acted intentionally.

2^nd cause of action for assault and battery

“The elements of a cause of action for assault are:  (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. Carlsen v. Koivumaki (2014) 227 Cal. App. 4th 879, 890 (citation omitted).

“The elements of a cause of action for battery are:  (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.”  Id. (citation omitted).

As stated above, the claim is barred by the statute of limitations.

3^rd cause of action for sexual assault and battery

As stated above, the claim is barred by the statute of limitations.

Accordingly, the demurrer is SUSTAINED WITH LEAVE TO AMEND.

Defendant is ordered to give notice of ruling.