Judge: Edward B. Moreton, Jr., Case: 23SMCV02599, Date: 2024-04-16 Tentative Ruling
Case Number: 23SMCV02599 Hearing Date: April 16, 2024 Dept: 205
|
VICTORIA VALENTINO, Plaintiff, v. WILLIAM COSBY, JR.., et al., Defendants. |
Case No.:
23SMCV02599 Hearing Date: April 16, 2024 [TENTATIVE]
order RE: DefendanT’s DEMURRER TO COMPLAINT |
MOVING PARTY: Defendant William Cosby, Jr.
RESPONDING PARTY: Plaintiff
Victoria Valentino
BACKGROUND
This
case arises from a sexual assault alleged to have occurred in 1969. Plaintiff Victoria Valentino (“Plaintiff”)
alleges that she auditioned before Defendant William Cosby Jr. (“Defendant”) in
1969 for an acting role. (Compl. at ¶ 8.) On a later date in the
same year, Plaintiff encountered Defendant while dining with a friend at Café
Figaro in Los Angeles, California. (Id. at ¶ 13.) Defendant offered to
pay for Plaintiff and her friend to receive spa treatments at a location along
Santa Monica Boulevard and to pay for dinner afterwards. (Id. at ¶ 16.)
Defendant’s
chauffeur picked up Plaintiff and her friend and drove them to Sneaky Pete’s on
the Sunset Strip for dinner. (Id. at ¶ 17.) During dinner, Defendant
gave Plaintiff and her friend pills to take that would “make us all feel
better.” (Id. at ¶ 18.) Defendant feigned taking his own pill to give
the impression that the pill was safe to ingest. (Id. at ¶ 19.) Shortly
thereafter, Defendant put a second pill into Plaintiff and her friend’s mouths.
(Id. at ¶ 20.) Because the effects of the drug made Plaintiff and her
friend disoriented, nauseous, and sleepy, Plaintiff wanted to go home, and
Defendant offered to drive them himself. (Id. at ¶¶ 21-22.) Instead, of
taking them home, Defendant took the pair to his office. (Id. at ¶ 23.)
When they reached the second floor of the building, Plaintiff’s friend passed
out on the couch, and Defendant attempted to have nonconsensual sex with her. (Id.
at ¶ 25.) Plaintiff attempted to intervene by distracting Defendant, and
Defendant then turned his attention to Plaintiff before sexually assaulting
her. (Id. at ¶¶ 25-28.) After the assault, Plaintiff and her friend left
the building while still disoriented and found a cab to take them home. (Id.
at ¶¶ 29-30.)
It
was later revealed in 2005 during a deposition that Defendant gave Quaaludes to
young women in order to have sex with them, and he engaged in a similar pattern
of conduct with his victims. (Id. at ¶¶ 31-32.) On information and
belief, Plaintiff alleges that Does 1-20 included entities that are “legally
responsible in some manner for the events, happenings, and/or tortious and
unlawful conduct that caused the injuries and damages alleged” above. (Id.
at ¶ 3.) Also, on information and belief, Plaintiff alleges that the defendants
were “agents, representatives, servants, employees, partners, and/or joint
venturers of each” other and “were acting within the course and scope of said
alternative capacity, identity, agency, representation and/or employment and
were within the scope of their authority.” (Id. at ¶ 4.) Additionally,
it is alleged that the defendants “approved and/or ratified the conduct of each
other Defendant.” (Ibid.)
On
June 5, 2023, Plaitniff filed the
operative complaint, alleging claims for (1) sexual assault, and (2) sexual
battery.
On January 5, 2024, Defendant filed the
instant demurrer, arguing the following: (1) Plaintiff’s claims are barred by
the statute of limitations and that Code of Civil Procedure § 340.16 is
inapplicable to revive her claims; (2) Plaintiff’s claims must be dismissed
because the Sexual Abuse and Cover Up Accountability Act (the “Act”), which
amended Code of Civil Procedure § 340.16, violates the Special Law Clause of
the California Constitution; (3) the Act violates due process under the United
States and California Constitutions because it retroactively deprives Defendant
of his statute of limitations defense, which is a vested right; and (4) the Act
violates the ex post facto clause enshrined in the United States and
California Constitutions because it retroactively extends the statute of
limitations and ties liability to criminal conduct.
On March 22, 2023, Plaintiff filed her opposition
to the demurrer.
On April 5, 2024, Defendant filed a reply.
LEGAL STANDARD
“[A] demurrer tests the legal sufficiency of
the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235
Cal.App.4th 385, 388.) A demurrer can be
used only to challenge defects that appear on the face of the pleading under
attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not
consider declarations, matters not subject to judicial notice, or documents not
accepted for the truth of their contents).)
For purposes of ruling on a demurrer, all facts pleaded in a complaint
are assumed to be true, but the reviewing court does not assume the truth of
conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962,
967.)
Leave to amend must be allowed where there is
a reasonable possibility of successful amendment. (See Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to
amend if there is any reasonable possibility that the defect can be cured by
amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency
(2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without
leave to amend if the complaint, liberally construed, can state a cause of
action under any theory or if there is a reasonable possibility the defect can
be cured by amendment.”).) The burden is
on the complainant to show the Court that a pleading can be amended
successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
JUDICIAL NOTICE
Plaintiff requests the Court to take judicial notice of
the following documents: (1) Assem. Floor Analysis, Analysis of Assem. Bill No.
2777 (2021-2022 Reg. Sess.) as amended August 11, 2022; (2) Sen. Rules Com.,
Analysis of Assem. Bill No. 2777 (2021-2022 Reg. Sess.) as amended August 11,
2022; (3) Sen. Com. on Appropriations, Analysis Addendum (2021-2022 Reg. Sess.)
as amended June 16, 2022; (4) Sen. Com. on Appropriations, Analysis of Assem.
Bill No. 2777 (2021- 2022 Reg. Sess.) as amended June 16, 2022; (5) Sen.
Judiciary Com., Analysis of Assem. Bill No. 2777 (2021-2022 Reg. Sess.) as
amended May 4, 2022; (6) Assem. Floor Analysis, Third Reading, Analysis of
Assem. Bill. No. 2777 (2021-2022 Reg. Sess.) as amended May 4, 2022; and (7) Assem.
Com. on Judiciary, Analysis of Assem. Bill No. 2777 (2021-2022 Reg. Sess.) as
introduced April 27, 2022.
The request is granted pursuant to Evidence
Code § 452(c).
DISCUSSION
Statute of Limitations
Defendant first argues that
Plaintiff’s claims are barred by the applicable statute of limitations
In assessing a demurrer challenging
the complaint based on a statute of limitations defense, the Court must
determine whether such a defense is plain on the face of the complaint.
“‘A demurrer on the ground of the bar of the statute of limitations will not
lie where the action may be, but is not necessarily barred.’ [Citations
omitted.] It must appear clearly and affirmatively that, upon the face of
the complaint, the right of action is necessarily barred. [Citations
omitted.] This will not be the case unless the complaint alleges every
fact which the defendant would be required to prove if he were to plead the bar
of the applicable statute of limitation as an affirmative defense.” (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 881 [citations omitted].)
As provided under Code of Civil
Procedure § 340.16, it states: “In any civil action for recovery of damages
suffered as a result of sexual assault, where the assault occurred on or after
the plaintiff’s 18th birthday, the time for commencement of the action shall be
the later of the following: (1) Within 10 years from the date of the last act,
attempted act, or assault with the intent to commit an act, of sexual assault
against the plaintiff;” or “(2) Within three years from the date the plaintiff
discovers or reasonably should have discovered that an injury or illness
resulted from an act, attempted act, or assault with the intent to commit an
act, of sexual assault against the plaintiff.” (Code Civ. Proc. § 340.16, subd.
(a).)
The three or ten-year statute of limitations applies to
any action that “is based upon conduct that occurred on or after January 1,
2009, and is commenced on or after January 1, 2019, that would have been barred
solely because the applicable statute of limitations has or had expired.” (Id.
at subd. (b)(3).) “It is not necessary that a criminal prosecution or other
proceeding have been brought as a result of the sexual assault or, if a
criminal prosecution or other proceeding was brought, that the prosecution or
proceeding resulted in a conviction or adjudication.” (Id. at subd.
(b)(2).)
For purposes of the statute, “sexual assault” includes
sexual battery and an attempt to commit such a crime, as defined by Penal Code
section 243.4. (Id. at subd. (b)(1).) The definition of a sexual battery
under Penal Code section 243.4 includes the touching of an intimate part of
another person, against the will of the person touched, for the specific
purpose of sexual arousal, sexual gratification, or sexual abuse. (Pen. Code §
243.4, subd. (e)(1).)
Moreover, under the statute, a plaintiff who alleges that
the entities legally responsible for the damages arising out of the sexual
assault engaged in or attempted to cover up previous instances of sexual
assault by the alleged perpetrator may have his otherwise time-barred claims
revived. (Code Civ. Proc. § 340.16, subd. (e)(1)–(2).) A qualifying “cover up”
is defined as “a concerted effort to hide evidence relating to a sexual assault
that incentivizes individuals to remain silent or prevents information relating
to a sexual assault from becoming public or being disclosed to the plaintiff,
including, but not limited to, the use of nondisclosure agreements or
confidentiality agreements.” (Id. at subd. (e)(4)(A).)
Here, considering Plaintiff alleges that she was sexually
assaulted by Defendant in 1969 after being drugged (Compl. ¶¶ 20-29), the only
way for Plaintiff’s claims to be revived is if Code of Civil Procedure §
340.16(e) has been sufficiently alleged. In this regard, Defendant argues that
Plaintiff has not alleged any entity is legally responsible for the damages
arising out of the sexual assault and that the entity or its agents engaged in
a cover up, as defined under the statute. (Demurrer at pp. 4-5.)
The Court disagrees with this position. As alleged in the
Complaint, the Doe Defendants include entities, such a corporations or
partnerships, that are legally responsible for Plaintiff’s sexual assault
because they acted within the course of their capacity or authority and
approved and/or ratified the conduct of each other. (Compl. ¶¶ 4-5.) Conversely,
Defendant is also alleged to be an agent of those Doe Defendants. (Ibid.)
Furthermore, the Complaint is premised on the fact that Defendant “used his
notoriety and status to sexually assault” the Plaintiff. (Id. at pg.
1.) Also, Defendant used his chauffer to
transport Plaintiff to the restaurant where he drugged her. (Id. at ¶
16.) It is further alleged that Defendant has engaged in similar conduct with
other victims and has been found civilly liable in June 2022 for sexually
assaulting a minor female. (Id. at ¶¶ 31, 34.) Moreover, with regard to
the “cover up” prong, Defendant is alleged to having using Quaaludes in order
to have sex with his victims without their knowledge. (Id. at ¶ 31.)
While the Complaint does not allege the use of a nondisclosure agreement or
confidentiality agreement, Defendant’s practice of drugging his victims into
unconsciousness would have prevented information regarding prior sexual
assaults from becoming public or disclosed to Plaintiff. (See Code Civ. Proc. §
340.16, subd. (e)(2), (4).) Because of the nature of the alleged sexual assault, it is evidence
that Defendant would have superior knowledge of the facts, and as a result, less
particularity is required here because the Complaint gives sufficient notice to
enable the preparation of a defense. (Doe v. City of Los Angeles (2007)
42 Cal.4th 531, 549–550.)
Accordingly, because the Complaint
sufficiently alleges the requirements necessary to revive her sexual assault
claims under Code of Civil Procedure § 340.16(e), the Court overrules
Defendant’s demurrer on this ground.
Whether the Act
Violates the Special Law Clause of the California Constitution
Next, Defendant argues that Code of Civil Procedure § 340.16
violates the special law clause of the California Constitution because the
statute “confers a highly peculiar privilege specific to victims of sexual
assault, namely it provides a civil remedy and the chance at extraordinary
monetary damages that are not available to other crime victims who have
suffered equally devastating trauma as a result of crimes” besides sexual
assault. (Demurrer at pp. 5-6.)
Under
Article IV, Section 16, it states in pertinent part that “all laws of a general
nature have uniform operation” and “a local or special statute is invalid in
any case if a generate statute can be made applicable.”
“The test for determining whether a
statutory classification violates [Article IV, Section 16] is ‘substantially
the same’ as that used to determine constitutionality under the equal
protection clause.” (Law School Admission Council, Inc. v. State of California
(2014) 222 Cal.App.4th 1265, 1297.) “This principle [of equal protections],
however, ‘does not require things which are different in fact or opinion to be
treated in law as though they were the same.’” (People v. Pottorff
(1996) 47 Cal.App.4th 1709, 1715, quoting Tigner v. Texas (1940) 310 U.S. 141,
147.)
“Wide discretion is vested in the
Legislature in making the classification and every presumption is in favor of
the validity of the statute; the decision of the Legislature as to what is a
sufficient distinction to warrant the classification will not be overthrown by
the courts unless it is palpably arbitrary and beyond rational doubt
erroneous.” (Sacramento Municipal Utility Dist. v. Pacific Gas & Elec.
Co. (1942) 20 Cal.2d 684, 693.)
Under
these circumstances, Code of Civil Procedure § 340.16 and the Act, more
broadly, generally applies to all sex victims over the age of 18. There is
nothing in the statute that would suggest that these individuals are being
treated differently. “[A] law is general
despite the fact that it operates only upon a class of individuals or things,
if it applies equally to all persons or things within the class to which it is
addressed.” (Pacific Gas & Elec. Co. v. Moore (1940) 37 Cal.App.2d
91, 95.) Thus, it is immaterial that the Act does not confer the same benefit
to victims of other crimes as those who are victims of sexual assault.
Accordingly, because the Act does not violate the special
law clause of the California Constitution, the demurrer is overruled on this
ground.
//
Whether
the Act Violates Defendant’s Due Process Rights
Defendant also argues that Code of
Civil Procedure § 340.16 violates due process under both the California and
United States Constitutions because it deprives Defendant of his right to a
statute of limitations defense, which vested in 1978. On this, Liebig v.
Superior Court (1989) 209 Cal.App.3d 828 is instructive. In this case, the
First District Court of Appeal acknowledged prior law stating that “[a]
potential defendant has no vested right in the sense of repose conferred by his
knowledge a lawsuit against him appears to be barred,” such that there is “no
constitutional impediment to retrospective application of a statute reviving a
civil cause of action.” (Id. at p. 834, brackets omitted.) Even if such
a vested right did exist, “vested rights are not immune from retroactive laws
when an important state interest is at stake.” (Id. at p. 834.)
In 2008, the Second District Court of Appeal again stated
that “the Supreme Court has determined that in a civil case, there is no
constitutional right of repose,” such that a defendant “has no constitutional
right to be free of the obligation to defend stale claims.” (Deutsch v.
Masonic Homes of California, Inc. (2008) 164 Cal.App.4th 748, 760.) More
recently, in 2020, the First District Court of Appeal stated that
“[l]egislation reviving the statute of limitations on civil law claims does not
violate constitutional principles.” (Coats v. New Haven Unified School
District, supra, 46 Cal.App.5th at p. 425.) Again, absent
legal authority specifically stating that legislation expanding the statute of
limitations violates a party’s constitutional due process rights, the Court
cannot conclude that Defendant’s constitutional rights have been so
violated.
Accordingly, because the Act does not violate Defendant’s
due process rights, the Court overrules Defendant’s demurrer on this ground.
Whether
the Act Violates the Ex Post Facto Clause of the United States and California
Constitutions.
Lastly, Defendant argues that Code of Civil Procedure §
340.16 violates the United States and California Constitutions’ prohibition of
ex post facto laws because the legislature intended the statute to be punitive.
Roman Catholic Bishop of Oakland v. Superior Court (2005) 128
Cal.App.4th 1155, a Second District Court of Appeal case, is instructive on
this issue. In that action, the defendant argued that a similar law that increased availability of tort
relief to plaintiffs who had been the victims of sexual abuse while a minor (Code of Civil Procedure § 340.1)
violated the constitutional prohibitions against ex post facto laws because the
statute had revived an expired statute of limitations. (Id. at p. 1160.)
In short, the prohibition against ex post facto laws means that “[l]egislatures
may not retroactively alter the definition of crimes or increase the punishment
for criminal acts” because a statute of limitations “acts as a sort of amnesty
that might lull a suspected offender into believing it was no longer necessary
to preserve exculpatory evidence,” making “legislation reviving a lapsed
criminal charge [] unfair and dishonest.” (Id. at p. 1161, quotation
marks omitted.) However, the appellate court also noted “that legislation
reviving the statute of limitations on civil law claims does not violate
constitutional principles” because “civil limitations periods find their
justification in necessity and convenience rather than in logic,” “[t]heir
shelter has never been regarded as a fundamental right,” and they are “subject
to a relatively large degree of legislative control.” (Id. at
pp.1161-1162, ellipses and quotation marks omitted.)
To be sure, “[t]he prohibition against ex post facto
legislation applies almost exclusively to criminal statutes but, in limited
circumstances, it can apply to civil legislation,” and “[d]espite the
Legislature’s clear intent to establish civil, not criminal proceedings,” a
civil statute can violate the prohibition against ex post facto laws “if the
statutory scheme is so punitive in purpose or effect that it negates the
Legislature’s intentions,” and “the fact that a statute is labeled as civil is
not dispositive.” (Hipsher v. Los Angeles County Employees Retirement
Association (2020) 58 Cal.App.5th 671, 697.) However, “[o]nly the clearest
proof will suffice to override the Legislature’s stated intent and render a
nominally civil statute penal for ex post facto purposes.” (Coats v. New
Haven Unified School District (2020) 46 Cal.App.5th 415, 425.)
Defendant argues that the statute’s reference to conduct
which is already a crime, specifically sexual assault, and for this reason, it renders
the statute violative of the ex post facto clause. The Court cannot conclude,
in the absence of case law so stating, that reference to conduct which is also
criminal in nature renders the statute violative because, again, the
prohibition against ex post facto laws seeks only to prohibit legislation which
“alter[s] the definition of crimes or increase[s] the punishment for criminal
acts”) which does not occur simply because the conduct at issue is also
criminal. (Roman Catholic Bishop of Oakland v. Superior Court, supra,
128 Cal.App.4th at p. 1161.) Notably, the statute is placed in a code “chapter
prescribing the limitations periods for a variety of common law and other civil
causes of action,” and the statute “is, by its terms, applicable to actions for
recovery of damages suffered as a result of [] sexual abuse,” thereby
supporting a conclusion “that the Legislature did not intend to impose
punishment of a criminal nature.” (Id. at p. 1170, quotation marks and
brackets omitted.)
Further, the prohibition against ex post facto laws
prohibits a law which (1) “makes an action, done before the passing of the law,
and which was innocent when done, criminal[,] and punishes such action”; (2)
“aggravates a crime, or makes it greater than it was, when committed”; (3)
“changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed”; or (4) “alters the legal rules of
evidence, and receives less, or different, testimony, than the law required at
the time of the commission of the offence in order to convict the offender.” (Roman
Catholic Bishop of Oakland v. Superior Court, supra, 128 Cal.App.4th
at p. 1161.) Code of Civil Procedure section 340.16 cannot be said as doing any
of these things because (1) Defendant’s alleged conduct was criminal before
Code of Civil Procedure § 340.16 was passed, (2) the crime is no greater than
it was when committed, (3) the punishment has not changed or increased since
the time it was committed, and (4) the rules of evidence have not been altered
in any way.
Nonetheless, Defendant argues that the statute is
designed to punish and deter, rendering it violative of the ex post facto
clause. The Second District Court of Appeal specifically analogized the
statute’s allowance for punitive damages as serving “much the same function as
the criminal law—to both punish and deter,” but this still did not render the
statute invalid for ex post facto purposes because “the Legislature did not
intend to impose punishment of a criminal nature.” (Roman Catholic Bishop of
Oakland v. Superior Court, supra, 128 Cal.App.4th at pp. 1165,
1172.) Further, our Supreme Court has stated that the legislative intent was
“to expand the ability of victims of childhood sexual abuse to hold to account
individuals and entities responsible for their injuries,” and “the Legislature
has not abolished the limitations period for childhood sexual abuse claims.” (Quarry
v. Doe I (2012) 53 Cal.4th 945, 989.) The Legislature sought to strike a
balance between abuse victims’ interest in seeking redress and the burden on
defendants of being required to defend against claims “for a relatively
indefinite period in the future” when it enacted the statute. (Id. at p.
989-990.)
In short, the Court declines to find that Code of Civil
Procedure § 340.16 violates ex post facto clause. Specifically, “legislation
reviving the statute of limitations on civil law claims does not violate
constitutional principles.” (Id. at p. 1161; see also Coats v. New
Haven Unified School District, supra, 46 Cal.App.5th at p.
427 [“a statute reviving the limitations period for a common law tort cause of
action, thereby allowing the plaintiff to seek punitive damages, does not
implicate the ex post facto doctrine”].) Therefore, the Court is not inclined
to conclude differently in the absence of case law so stating.
Accordingly, because the Act does not violate the ex post
fact clause of the United States and California Constitutions, the Court
overrules Defendant’s demurrer on this basis as well.
CONCLUSION
Based on the foregoing, the Court OVERRULES
Defendant’s demurrer in its entirety.
IT IS SO ORDERED.
DATED: April 16, 2024 ___________________________
Edward
B. Moreton, Jr.
Judge
of the Superior Court