Judge: Douglas W. Stern, Case: 23STCV10162, Date: 2023-09-05 Tentative Ruling

Case Number: 23STCV10162    Hearing Date: December 14, 2023    Dept: 68

Alexis Craney-Foster vs. SkyHop Global, et al.; 23STCV10162

MOVING PARTY: Defendant SkyHop Global LLC

RESPONDING PARTY: Plaintiff Alexis Craney-Foster

Demurrer to First Amended Complaint with Motion to Strike

I. BACKGROUND

            Plaintiff Alexis Craney-Foster filed a complaint against Defendant SkyHop Global LLC (Defendant). Plaintiff’s First Amended Complaint (FAC) alleges sixteen causes of action related to Plaintiff’s employment with Defendant. The cause of action at issue in the demurrer is Plaintiff’s Seventh Cause of Action for Sexual Assault and Battery.

            Plaintiff’s cause of action for Sexual Assault and Battery is based on her allegations that her former Leader on Duty, Eros Surla kissed her and touched her in an inappropriate manner while she was at work. (FAC, ¶¶ 29-32, 134, 135.)

            Plaintiff filed her FAC on September 25, 2023. Defendant filed this demurrer on October 27, 2023. Plaintiff opposes.

II. ANALYSIS

A. The Demurrer

As a general matter, 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. (Id.) 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.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

1.    Seventh Cause of Action for Sexual Assault and Battery

Defendant demurs to the Seventh Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendant and because Defendant cannot be held liable under this cause of action under a theory of respondeat superior.

The Supreme Court has explained the scope of employer liability for an employee’s conduct:

One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the accrual occurrence was a generally foreseeable consequence of the activity. However, ‘foreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense, ‘foreseeable’ means a level of probability which would lead a prudent person to make effective precautions whereas ‘foreseeability’ as a test for respondeat superior merely means that 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.

(Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-1004.)

            Thus, in order for an employer to be held vicariously liable for the conduct of its employee, the conduct must not be so unusual to the employer’s business that the employee is said to have acted outside the course and scope of his employment. (Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1101-02 [“An employer is not vicariously liable for an employee’s conduct if the employee substantially deviates from his or her course of duty so as to amount to a complete departure.”].) The law is clear in California that “an employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes.” (Farmers, 11 Cal.4th at 1004-05 (emphasis in original) (citing Alma W. v. Oakland Unified Sch. Dist. (1981) 123 Cal.App.3d 133, 139.)) Acts committed out of “personal malice unconnected with the employment” that is not an “outgrowth” of the employment does not trigger vicarious liability. (Id. at 1005.) “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 give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Alma W., 123 Cal.App.3d at 140.)

Plaintiff is attempting to hold Defendant responsible for the actions of Plaintiff’s Leader on Duty, Eros Surla. Plaintiff’s FAC alleges that there were a couple of instances where Surla kissed or touched Plaintiff inappropriately. (FAC, ¶¶ 134, 135.) Surla’s conduct would constitute a substantial deviation from his course of duty. In allegedly kissing and touching Plaintiff, Surla substantially deviated from his employment duties for personal purposes. Surla’s conduct was not foreseeable from Defendant’s perspective.

Plaintiff’s opposition argues that she reported the conduct to Defendant, so it should have been foreseeable to Defendant. However, this is not clear under the Seventh Cause of Action in Plaintiff’s FAC.

Therefore, because Plaintiff’s FAC does not show that Defendant would be liable for sexual assault and battery based on the doctrine of respondeat superior, Defendant’s demurrer to PLAINTIFF’S SEVENTH CAUSE OF ACTION IS SUSTAINED WITH LEAVE TO AMEND.

B. Motion to Strike

Defendant has moved for the Court to strike several references throughout Plaintiff’s complaint to Boykin’s conduct that occurred prior to August 21, 2021. The things that Defendant has requested stricken are in FAC ¶¶ 26, 28, 31, 39, 72, 73, 87, 91, 124, 125, 127, 129, 130, and 135. Defendant has requested that these be stricken pursuant to CCP § 436(b) because the Court previously ordered all references to Boykin’s conduct prior to August 21, 2021, to be stricken.

The parties’ Settlement Agreement from August 21, 2021, prevents any events that occurred prior to August 21, 2021, from being included in Plaintiff’s FAC. The parts of the paragraphs that Defendant indicated in its motion to strike all refer to Boykin’s conduct or other events that occurred prior to August 21, 2021, and should therefore be stricken pursuant to the Settlement Agreement and the Court’s prior order.

Plaintiff’s opposition to the motion to strike mentions that she mistakenly did not include her breach of contract cause of action in her FAC and asks for leave to amend. The opposition to the motion to strike is not an appropriate place to request leave to amend. Plaintiff should file a separate motion for leave to amend in order to add this cause of action to the FAC.  (Nothing prevents the parties from reaching an appropriate stipulation relating to an amendment.)

Defendant’s MOTION TO STRIKE IS GRANTED.

III. ORDER

1.    Defendant’s demurrer to Plaintiff’s SEVENTH CAUSE OF ACTION IS SUSTAINED WITH LEAVE TO AMEND.

2.    Defendant’s MOTION TO STRIKE IS GRANTED without leave to amend.

3.    Plaintiff is given 20 days from the date of service of this order to amend her FAC.