Judge: Elaine Lu, Case: 21STCV35382, Date: 2023-03-10 Tentative Ruling
Case Number: 21STCV35382 Hearing Date: March 10, 2023 Dept: 26
|
bianca alexis
fairchild,
formerly known as TANESHA T. REID, also known as TAYLOR REID and TAYLOR
FRIEDMAN; Plaintiff, v. JENNIFER LECHTER, individually and as Trustee
of the GERALD M. FRIEDMAN TRUST; MARVIN ENGINEERING, CO., INC., a California
Corporation; DOEs 1-5, as the Personal Representative(s) of the ESTATE OF
GERALD M. FRIEDMAN, et al., Defendants. |
Case No.: 21STCV35382 (related with 19STCV26182) Hearing Date: March 10, 2023 [TENTATIVE]
order RE: defendant Marvin engineering, co., inc.’s demurrer and the estate
of gerald m. friedman’s demurrer and motion to strike portions of the
complaint |
Procedural
Background
Plaintiff Bianca Fairchild (“Plaintiff”)
filed the action Bianca Alexis Fairchild v. Jennifer Lechter, individually
and as Successor Trustee of the Gerald M. Friedman Trust; Gerald M. Friedman,
also known as Jerry Friedman, 19STCV26182 on July 26, 2019 (“Lead Action”). On September 27, 2019, Plaintiff filed the
operative first amended complaint (“Lead FAC”) in the Lead Action against Jennifer Lechter individually, Jennifer Lechter as
Successor Trustee of the Gerald M Friedman Trust, and Gerald M. Friedman. The FAC asserts six causes of action for (1)
Breach of Express Contract, (2) Breach of Implied Contract, (3) Trespass, (4)
Conversion, (5) Declaratory Relief, and (6) Tortious Interference with
Contract. On April 13, 2021, the Court imposed
terminating sanctions and dismissed Jennifer Lechter in her individual and
representative capacity from the complaint as a result of Plaintiff’s willful
failure to comply with discovery orders.
(Lead Action Order 4/13/21; see also Lead Action Order 5/31/22.) On May 31, 2022, the Court entered Judgment in
favor of Jennifer Lechter in her individual and representative capacity (as
Successor Trustee of the Trust) in the Lead Action.
On September 27, 2021, Plaintiff filed the
instant action, 21STCV35382 (“the instant action”) against Defendants Jennifer
Lechter, individually and as Trustee of the Gerald M. Friedman Trust, Marvin
Engineering, Co., Inc. (“Marvin Engineering”), and Does 1-5 as the Personal
Representatives of the Estate of Gerald Friedman. The complaint asserts twelve causes of action
for (1) Breach of Written Contract, (2) Breach of Express Contract, (3) Breach
of Implied Contract, (4) Breach of the Implied Covenant of Good Faith and Fair
Dealing, (5) Putative Marriage, (6) Promissory Estoppel, (7) Intentional
Interference with Contractual Relations, (8) Negligent Misrepresentation, (9)
Intentional Misrepresentation, (10), Breach of Fiduciary Duty, (11) Conversion,
and (12) Sexual Battery.
On January 27, 2022, the Instant Action
was deemed related to the Lead Action.
(Minute Order 1/27/22.) On October
5, 2022, the Court sustained Defendant Jennifer Lechter, individually and as Successor
Trustee of the Gerald M. Friedman Trust’s demurrer to the complaint without
leave to amend. (Order 10/5/22.) On January 3, 2023, the Court entered
judgment in favor of Jennifer Lechter, individually and as Successor Trustee of
the Gerald M. Friedman Trust in the instant action.
On November 22, 2022, Defendant Marvin
Engineering filed the instant demurrer to the twelfth cause of action in the
instant action. On December 15, 2022,
Jennifer Lechter as the Personal Representative of the Estate of Gerald M. Friedman
(the “Estate”) filed the instant demurrer and motion to strike portions of the
complaint. On December 19, 2022,
pursuant to the stipulation of all parties, the Court advanced the Estate’s
demurrer and motion to strike to be heard concurrently with Defendant Marvin
Engineering’s demurrer. On February 27,
2023, Plaintiff filed oppositions to the demurrers and motion to strike. On March 3, 2023, Defendant Marvin
Engineering and Defendant Estate each filed replies.
Allegations
of the Operative Complaints
The Lead Action alleges in relevant
part that:
In June 1995, when Plaintiff was
approximately 14 years old, Plaintiff met Gerald M. Friedman (“Decedent”) who
was then approximately 60 years old. (Lead
FAC ¶ 10.) At the time, Plaintiff did
not have a permanent home. (FAC ¶
10.) Decedent offered Plaintiff a place
to live at his condominium, and she moved in with Decedent in 1997. (Lead FAC ¶ 11.) Plaintiff “began having a sexual relationship
with [Decedent] shortly thereafter.” (Lead
FAC ¶ 11.)
During this period of cohabitation,
Decedent promised to “provide for [Plaintiff’s] financial stability after his
passing, through his will and otherwise, and that she would always be taken
care of” throughout her life. (Lead FAC ¶
15.) Decedent also informed Plaintiff
that the Gerald M. Friedman Trust was “established for the benefit of [his]
children and Plaintiff.” (Lead FAC ¶
12.)
Between 1997 and 2018, Decedent used his
own assets and assets from the Gerald M. Friedman Trust to support Plaintiff,
including by buying her real property, cars, and jewelry, providing “salaried
position at Marvin Engineering Corporation, Inc.,” and “provid[ing] for
Plaintiff's education.” (Lead FAC ¶ 13.)
“Plaintiff and [Decedent] at times held themselves out to third parties
as husband and wife.” (Lead FAC ¶ 14.) Plaintiff is informed and believes that on
June 3, 2018, Decedent suffered an accident rendering him partially incapacitated. (Lead FAC ¶ 18.)
Beginning in or
about July 2018, [Decedent] materially breached the agreement between he and
Plaintiff. Plaintiff is informed and believes, and thereon alleges, that such
breach was in fact occasioned by Defendant Lechter, who had taken over [Decedents]’s
affairs, and DOES 1 through 5, inclusive. At or about that time: (a) Plaintiff
was refused any access to [Decedent]; (b) Plaintiffs salaried position at
Marvin Engineering was terminated and her salary ceased; ( c) on or about July
13, 2018, Plaintiff’s Special Powers of Attorney dated July 29, 2015 and April
3, 2018 over [Decedent]’s rental properties at 7100 Alvern Street, Los Angeles,
California were revoked and on or about July 24, 2018 a demand was made to pay
$12,000 in rental income and security deposits which Plaintiff had collected
and [Decedent] had previously allowed Plaintiff to keep; (d) at a time from on
or about July 15, 2018 through August 8, 2018 the locks were changed at
Plaintiffs residence at the Malibu Condo, the Malibu Condo was broken into and
essentially all of Plaintiffs personal property was removed including, without
limitation, artwork, clothing, jewelry, computers, printer, surveillance
system, safe containing cash, documents and photographs; (e) on or about August
8, 2018 $94,000 was removed from a joint account in the name of Plaintiff and [Decedent]
at Comerica Bank; (f) at a time from in or about July through August 2018,
Plaintiff’s personal property kept at Defendant Friedman’s townhouse at 3610
Vintage on the Strand, #15, Park City, Utah (‘Park City Townhouse’) was removed
including, without limitation, clothes, jewelry, furniture, gym equipment and
computers; (g) at a time from or about July through August 2018, Plaintiff was
deprived of her personal property including, without limitation, clothing and
jewelry that were at [Decedent]’s primary residence at 1806 N. Beverly Glen
Boulevard, Los Angeles, California (‘Bel Air Residence’); (h) on or about
February 22, 2019, the Malibu Condo was again broken into, locks were changed
and items of Plaintiffs jewelry as well as cash were taken; ( I ) on or about
August 31, 2018 Plaintiff was provided with a Notice of Termination of Tenancy
with respect to the Malibu Condo giving her 60 days to vacate the premises. On
or about January 15, 2019 an Unlawful Detainer Complaint was filed against
Plaintiff to evict her from the Malibu Condo. Service of process was
purportedly obtained by posting and mailing pursuant to C.C.P. § 415.45, a
default was entered against Plaintiff on or about February 28, 2019, a judgment
and writ of possession obtained on or about March 1, 2019 and Plaintiff was
evicted from the Malibu Condo. Plaintiff is informed and believes, and thereon
alleges, that on or about May 30, 2019, Defendant Lechter sold the Malibu Condo
for approximately $3,960,000.
(Lead
FAC ¶ 28.)
The Complaint in the Instant Action
alleges in relevant part:
In June 1996, when Plaintiff was
approximately 15 years old, Plaintiff met Gerald M. Friedman (“Decedent”) who
was then approximately 60 years old. (Complaint
¶ 17.) Decedent “promised and agreed to
provide Plaintiff with emotional and financial support throughout her life, and
to provide for her financial stability even after his passing, such that
Plaintiff would always be financially taken care of.” (Id. ¶ 19.) Plaintiff then moved into Decedent’s
condominium in 1997 and Decedent soon “began having a coercive sexual
relationship with Plaintiff.” (Id.
¶ 20.)
In 1999, Plaintiff married Decedent
in Las Vegas, but Decedent failed to properly obtain and file the proper marriage
paperwork. (Id. ¶ 21.) On July 5, 2012, Plaintiff and Decedent
entered into a written agreement under which Decedent promised to “a) assist
Plaintiff with her immigration citizenship acquisition; b) assist Plaintiff to
freeze and preserve her embryos for future pregnancy opportunities; c) support
Plaintiff emotionally, financially, and mentally through the duration of
Plaintiff’s lifetime; d) prevent Decedent’s daughter – Defendant Lechter – from
interjecting into Plaintiff and Decedent’s personal, business, and/or
contractual relationship; e) purchase real property, placing both Decedent and
Plaintiff on title, which Decedent and Plaintiff would utilize as their home;
and f) pay for Plaintiff’s educational pursuits, amongst other obligations.” (Id. ¶ 25.)
Decedent supported Plaintiff as agreed “up
until around July 3, 2018” when Decedent suffered an accident that left him
partially incapacitated. (Id. ¶
28.) At this point Defendant Lechter “assumed
control of all of [his] personal, business, and financial affairs,” including
replacing Decedent as Trustee of the Gerald M. Friedman Trust. (Id. ¶¶ 28-29.) After Defendant
Lechter assumed control of Decedent’s affairs, she did not continue to support Plaintiff
and prevented Decedent from doing so. (Id.
¶¶ 30-31.) Instead, Lechter “evict[ed]
Plaintiff from the Malibu Property” and “misappropriat[ed] funds from Plaintiff
and Decedent's joint bank account.” (Id.
¶ 31.)
On May 13, 2020, Decedent passed
away. (Id. ¶ 12.)
Request for
Judicial Notice
In conjunction
with the moving papers, Defendant Estate requests that the Court take judicial
notice of:
A.
Minute Order
dated November 15, 2021 in the Lead Action by the Honorable David J. Cowan in
Department 1
B.
Minute Order dated
January 27, 2022 in the Instant Action
C.
The Court’s
October 5, 2022 Order in the Instant Action
As the court may
take judicial notice of court records and government records, (See Evid.
Code, § 452(c),(d)), the unopposed request for judicial notice is granted.
However, the Court will not take judicial notice of the truth of assertions
within. (See Herrera v. Deutsche Bank
National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)
Legal Standard
Demurrer
Standard
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. (Blank v. Kirwan (1985)
39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.)
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007) 147 Cal. App.
4th 740, 747.) When considering
demurrers, courts “give the complaint a reasonable interpretation, and read it
in context.” (Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081.) 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 pleadings alone and not
the evidence or other extrinsic matters.
Therefor’e, it lies only where the defects appear on the face of the
pleading or are judicially noticed.” (SKF
Farms v. Superior Ct. (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,
supra, 147 Cal.App.4th at 747.)
Motion to Strike
Standard
Motions
to strike are used to reach defects or objections to pleadings that are not
challengeable by demurrer (i.e., words, phrases, prayer for damages,
etc.). (See CCP §§ 435-437.) A party
may file a motion to strike in whole or in part within the time allowed to
respond to a pleading. However, if a
party serves and files a motion to strike without demurring to the complaint,
the time to answer is extended. (CCP §§
435(b)(1), 435(c).)
A
motion to strike lies only where the pleading has irrelevant, false, or
improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.)
The grounds for moving to strike must appear on the face of the
pleadings or by way of judicial notice.
(CCP § 437.)
Meet and Confer
Requirement
Code
of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a
demurrer pursuant to this chapter, the demurring party shall meet and confer¿in
person or by telephone¿with the party who filed the pleading that is subject to
demurrer for the purpose of determining whether an agreement can be reached
that would resolve the objections to be raised in the demurrer.” The parties
are to meet and confer at least five days before the date the responsive
pleading is due and if they are unable to meet the demurring party shall be
granted an automatic 30-day extension. (CCP § 430.41(a)(2).) The
demurring party must also file and serve a declaration detailing the meet and
confer efforts. (Id.¿at
(a)(3).)¿ If an amended pleading is filed, the parties must meet and confer
again before a demurrer may be filed to the amended pleading. (Id.¿at (a).) There is a similar
meet and confer requirement for motions to strike. (CCP § 435.5.)
Defendant Marvin
Engineering and Defendant Estate have fulfilled the meet and confer requirements.
(Corpuz Decl. ¶ 2; Eisenbaum Decl. ¶¶ 3-4.)
Discussion –
Demurrer
Defendant Estate demurrers to each
cause of action raised against it – i.e., the first, second, third, fourth,
fifth, sixth, eighth, ninth, tenth, and twelfth causes of action. Defendant Marvin Engineering similarly
demurrers to the only cause of action against it – i.e., the twelfth cause of
action.
Entire
Complaint as to the Estate
Defendant Estate contends that the
entire complaint fails because (1) the instant action is barred by res
judicata, and (2) Plaintiff failed to comply with Probate Code section 9351.
Res Judicata
Defendant Estate contends that
Plaintiff should be precluded from asserting the action twice as “[a]ll of the
facts giving rise to the Plaintiff's Causes of Action, except the Twelfth Cause
of Action have been raised in the [Lead Action]. The [Lead Action] is
proceeding and has a trial date scheduled for December 4, 2023. Thus, the
instant Action with the identical same claims would ultimately be barred by
principles of Collateral Estoppel, Res Judicata and Issue Preclusion.” (Estate Demurrer at p.8:7-11.)
“‘Res judicata’ describes the preclusive
effect of a final judgment on the merits. Res judicata, or claim preclusion,
prevents relitigation of the same cause of action in a second suit between the
same parties or parties in privity with them. Collateral estoppel, or issue
preclusion, ‘precludes relitigation of issues argued and decided in prior
proceedings.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888,
896.) Res Judicata has been used to refer to both claim and issue preclusion. (Ibid.,
Fn. 7.) The doctrine has two aspects: it applies to both a previously litigated
cause of action, referred to as claim preclusion, and to an issue necessarily
decided in a prior action, referred to as issue preclusion. (Vandenberg v.
Superior Court (1999) 21 Cal.4th 815, 828; Teitelbaum Furs, Inc. v.
Dominion Ins. Co. (1962) 58 Cal.2d 601, 604.)
This distinction
is essential to understanding the analysis below, as courts have oft-noted the
“seemingly ineradicable confusion over the distinctions between ‘res judicata’
(claim preclusion) and ‘collateral estoppel’ (issue preclusion).” (Ferraro v. Camarlinghi (2008) 161
Cal.App.4th 509, 541, Fn. 21.)
Issue preclusion
applies only to issues that were actually litigated in the earlier matter;
whereas claim preclusion extends to all legal theories, proofs, and demands for
relief that might have been presented in the first matter, provided both suits
assert the same cause of action. (Ibid. citing Landeros v. Pankey
(1995) 39 Cal.App.4th 1167, 1171; Gottlieb
v. Kest (2006) 141 Cal.App.4th 110, 148; Mycogen Corp. v. Monsanto Corp. (2002) 28 Cal.4th 888, 897; Burdette v. Carrier Corp. (2008) 158
Cal.App.4th 1668, 1687.) “Res judicata [claim preclusion] bars the relitigation
not only of claims that were conclusively determined in the first action, but
also matter that was within the scope of the action, related to the subject
matter, and relevant to the issues so that it could have been raised” and
includes ‘matters which were raised or could have been raised, on matters
litigated or litigable.’” (Burdette v.
Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674-1675; accord Mark v. Spencer (2008) 166 Cal.App.4th 219, 229 [bars claims that
parties had a fair opportunity to litigate].)
Claim preclusion applies as a bar to splitting a cause of action for
partial, later litigation, or relitigation of the same cause of action based
upon on another legal theory or associated with different relief, that could
have been sought in the prior action. (Noble
v. Draper (2008) 160 Cal.App.4th 1, 10; Hamilton v. Asbestos Corp., Ltd.
(2000) 22 Cal.4th 1127, 1146.)
Its purpose is “to preserve the integrity of the judicial system,
promote judicial economy, and protect litigants from harassment by vexatious
litigation.” (Vandenberg v. Superior
Court (1999) 21 Cal.4th 815, 829.)
The prerequisite
elements for applying the doctrine to either an entire cause of action or one
or more issues are the same: (1) A claim or issue raised in the present action
is identical to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the party
against whom the doctrine is being asserted was a party or in privity with a
party to the prior proceeding. (Ibid.)
Here, there is no basis for
asserting res judicata because no final judgment on the merits has been entered
in the Lead Action. Thus, res judicata
would be inapplicable. Rather, the fact
that the claims are identical and based on the same identical conduct would be
a basis for consolidation or an abatement.
(See e.g. Jefferson Street Ventures, LLC v. City of Indio (2015)
236 Cal.App.4th 1175, 1206 [noting that “consolidation appears particularly
appropriate [when]… the cases are in the same court, involve the same property,
and many (if not all) of the same damages.”]; Plant
Insulation Co. v. Fibreboard Corp. (1990)
224 Cal.App.3d 781, 787 “A plea in abatement pursuant to section 430.10,
subdivision (c), may be made by demurrer or answer when there is another action
pending between the same parties on the same cause of
action.”].)
Accordingly, Defendant Estate’s
demurrer based on res judicata is OVERRULED.
Probate
Code § 9351 Prohibits the Instant Action
Defendant Estate asserts that the
instant action is barred by Probate Code section 9351. The Court agrees.
In the first step of the
interpretive process we look to the words of the statute themselves. [Citations.]
The Legislature's chosen language is the most reliable indicator of its intent
because ‘ “it is the language of the statute itself that has successfully
braved the legislative gauntlet.” ’ [Citations.] We give the words of the
statute ‘a plain and commonsense meaning’ unless the statute specifically
defines the words to give them a special meaning. [Citation.] If the statutory
language is clear and unambiguous, our task is at an end, for there is no need
for judicial construction. [Citation.]
In such a case, there is nothing for the court to interpret or construe.” (MacIsaac v. Waste Management Collection
& Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082–1083.) However, courts “need not follow the plain
meaning of a statute when to do so would ‘frustrate[ ] the manifest purposes of
the legislation as a whole or [lead] to absurd results.’ [Citations.]” (California School Employees Assn. v.
Governing Board (1994) 8 Cal.4th 333, 340.)
Here, Probate Code section 9351
provides that “[a]n action may not be commenced against a
decedent's personal representative on a cause of action against the decedent
unless a claim is first filed as provided in this part and the claim is
rejected in whole or in part.” (Id.,
[bold and italics added].) The filing of
a lawsuit does not satisfy this claim requirement. (Heywood v. Municipal Court (1988)
198 Cal.App.3d 1438, 1444, Fn. 2 [“The statutory requirement of presentation of
a claim is not satisfied by service of summons and complaint (on the personal
representative) in a lawsuit, although the pleadings do in their way provide an
announcement of the amount and nature of the claim.”]; accord Dobler v.
Arluk Medical Center Industrial Group, Inc. (2001) 89 Cal.App.4th 530,
536, Fn. 13.) “A timely filed claim is a
condition precedent to filing an action against a decedent's estate.” (Dobler, supra, 89 Cal.App.4th at p.536.)
The law is clear and unambiguous,
Probate Code section 9351 requires that a claim against an estate – including a
lawsuit against the decedent’s personal representative – may not filed until
after a claim is first filed and rejected in Probate. Here, Plaintiff has failed to comply with
Probate Code section 9351. As previously
noted by the Court in the judicially noticed record, “Plaintiff prematurely
initiated the [instant action] before complying with creditor claim procedures
to pursue claims against [the Estate].”
(RJN Exh. A at p.7; see also RJN Exh. B at p.1.) Plaintiff further concedes in opposition that
“Plaintiff filed a Creditor's Claim in the probate proceeding on or about
September 28, 2021” – i.e., after the instant action was filed on September 26,
2021. (Opp. to Estate Demurrer at p. 2:8-10.) Under the plain meaning of Probate Code
section 5351, the instant action is barred.
Relying on Rogers v. Hirschi (1983)
141 Cal.App.3d 847, Plaintiff contends in opposition that “[e]ven a complete
failure to file a creditor's claim would not be jurisdictional in an action
against the Estate.” (Opp. to Estate
Demurrer at p.2:18-19.) However,
Plaintiff’s reliance on Rogers is misplaced.
In Rogers,
the plaintiff sued the executor of the estate of the tortfeasor and obtained a
judgment of $175,000. The decedent's insurance carrier paid $99,900 toward the
judgment. After the time expired for filing notice of appeal, the executor
filed a motion to modify the judgment to the amount paid by the insurance
carrier because the plaintiff had failed to file a timely creditor's claim in
the probate action. The trial court granted the motion, citing former Probate
Code section 721 (current Prob.Code, § 554, subdivision (a)), which limits
recovery to the amount of the insurance coverage when no claim has been filed.
The Court of Appeal reversed. It held that the trial court had no power to
modify the final judgment and that the executor was estopped from arguing that
the absence of a timely creditor's claim defeated the judgment to the extent it
was in excess of the insurance coverage. At most, the entry of final judgment
against the executor in a case in which the plaintiff did not file a timely
claim was an act in excess of jurisdiction. (141 Cal.App.3d at pp. 849–853.)
(Estate
of Prindle (2009) 173 Cal.App.4th 119, 129–130 [Summarizing Rogers].)
As the Court of Appeal explained in Rogers,
“[w]hen, as here, the court has jurisdiction of the subject, a party who by his
conduct consents to or permits action which may be in excess of the court's
power may be estopped to complain of the ensuing action in excess of
jurisdiction.” (Id. at p.852,
[italics added].)
As the Rogers Court further explained, a plaintiff’s
failure to file a creditor claim in Probate before filing a civil action may result
in the court acting in excess of jurisdiction, but a party can be estopped from
subsequently objecting to this defect if that party participates in the action
and fails to raise the objection until after judgment has been entered against that
party. Here, the circumstances are
strikingly different. Defendant Estate
has not failed to timely object to Plaintiff’s failure to file a creditor claim
before bringing the instant action. In
fact, this demurrer is Defendant Estate’s initial pleading in the instant
action. There has been no delay by Defendant
Estate, and Defendant Estate is not estopped from complaining that Plaintiff
failed to file a creditor claim before filing the instant action.
Accordingly, Probate Code section 9351
bars the instant action against the Estate.
Defendant Estate’s demurrer to the complaint is SUSTAINED IN ITS
ENTIRETY.
Twelfth
Cause of Action: Sexual Battery
Defendant Marvin Engineering asserts
that Plaintiff fails to allege sexual battery under a respondeat superior
theory or a duty to protect theory.
Respondeat Superior
“Under the doctrine of respondeat
superior, ‘an employer is vicariously liable for the torts of its employees
committed within the scope of the employment.’”
(Saks v. Charity Mission Baptist Church (2001) 90
Cal.App.4th 1116, 1138.) “An employer
may be vicariously liable for willful, malicious, even criminal acts, of an
employee that are deemed to be committed within the scope of employment, even
though the employer has not authorized such acts. [Citation.] An act is within
the scope of employment if the employment predictably creates the risk that
employees will commit intentional torts of the type for which liability is
sought.” (Samantha B. v. Aurora Vista
Del Mar, LLC (2022) 77 Cal.App.5th 85, 107.)
“Courts have generally held that an
employer is not liable under the doctrine of respondeat superior for sexual
assaults committed by an employee.” (Ibid.) “As with . . . nonsexual
assaults, a sexual tort will not be considered engendered by the employment
unless its motivating emotions were fairly attributable to work-related events
or conditions.” (Lisa M. v. Henry
Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301.) “An intentional tort is foreseeable, for
purposes of respondeat superior, only if ‘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.’ [Citation.] The question is not one of statistical
frequency, but of a relationship between the nature of the work involved and
the type of tort committed. The employment must be such as predictably to
create the risk employees will commit intentional torts of the type for which
liability is sought.” (Id. at
p.302.)
Here, as to Marvin Engineering, the complaint
alleges that Decedent was the Chief Executive Officer and Chairman of the Board
of Defendant Marvin Engineering, and that Plaintiff was an employee of
Defendant Marvin Engineering since she was 15 years old. (Complaint ¶¶ 125, 126.) Plaintiff alleges that Decedent sexually assaulted
Plaintiff – because Plaintiff believed she would lose her job if she said no
and could not give consent as she was a minor – while on company premises. (Id. ¶ 126.) Plaintiff further alleges that this conduct
continued following Plaintiff attaining maturity. (Id. ¶ 127.) Moreover, Plaintiff alleges that when this
conduct occurred “Decedent was acting in the course and scope of his agency and
employment with Defendant Marvin Engineering.”
(Id. ¶ 126.)
Much of the authority on which the parties
rely have involved summary judgments, appeals from verdicts, or motions for
nonsuits – i.e., Lisa M., Mary M., and Samantha B. Nonetheless, courts have routinely sustained demurrers
where the complaint fails to allege facts to support a finding that sexual
misconduct occurred in the course and scope of employment and fails to allege a
relationship between the nature of the work involved and the type of tort
committed so as to demonstrate that the intentional tort was foreseeable in the
context of the enterprise. For example,
in Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d
133, the plaintiff, an 11–year–old student, sued the school district for damages
arising out of a sexual assault by a school custodian on school property. (Id.
at pp.137-138.) The Court of Appeal
affirmed an order sustaining the district’s demurrer without leave to
amend, concluding that the sexual assault had not occurred in the scope of the
custodian's employment as a matter of law. (Id. at p.138.) The Court of Appeal reasoned that “[w]hether
the scope of employment issue is a question of fact or a question of law will
turn on the factual background of the particular case: Where the facts of the
case make it arguable whether the employee has acted within the scope of his
employment, then the scope of employment issue is one properly decided by the
trier of fact. However, where the facts would not support an inference that the
employee acted within the scope of his employment and where there is no dispute
over the relevant facts, the question becomes one of law.” (Alma W. v. Oakland Unified School Dist. (1981)
123 Cal.App.3d 133, 138.)
Here,
the only allegation indicating that Decedent was acting in the scope of his
employment while sexually assaulting Plaintiff is the bare allegation that “Decedent
was acting in the course and scope of his agency and employment with Defendant
Marvin Engineering.” (Complaint ¶
126.) These allegations are insufficient
as they merely constitute a conclusion of law and “[t]he court does not …
assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 967.)
Accordingly, the complaint fails to
allege liability to Marvin Engineering through respondeat superior.
Duty
to Protect Is not the Correct Standard
Defendant Marvin Engineering’s second contention is that there is no duty to
protect. However, this argument relies
upon an incorrect standard. Here, Plaintiff has alleged only a claim for
sexual battery against Defendant Marvin Engineering – not a negligence claim.
To state a claim for sexual battery, Plaintiff must allege that “1. [(a) That
[Defendant Marvin Engineering] intended to cause a harmful [or offensive]
contact with [Plaintiff]'s [sexual organ/anus/groin/buttocks/ [or] breast], and
a sexually offensive contact with [Plaintiff] resulted, either directly or
indirectly;] [¶] AND [¶] 2. That [Plaintiff] did not [consent to the
touching/verbally consent to the condom being removed]; and [¶] 3. That
[Plaintiff] was harmed [or offended] by [Defendant Marvin]'s conduct.”
(CACI No.1306; see also Civ. Code, § 1708.5.) There is no requirement
for Plaintiff to allege or prove duty for a violation of Civil Code section
1708.5 sexual battery, which involves intentional conduct and is not premised
on any duty between the parties.
The existence of a duty of care in a duty to protect would be relevant to a claim
of negligence – which has not been alleged. “‘The elements of a negligence
cause of action are the existence of a legal duty of care, breach of that duty,
and proximate cause resulting in injury.’ [Citations.]” (McIntyre v.
The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
Plaintiff has not alleged that Defendant Marvin Engineering had a duty a to
protect, that the duty to protect was breached, or that Defendant Marvin
Engineering’s negligence was the proximate cause of Decedents’ intentional
conduct. Rather, Plaintiff has alleged Defendant Marvin Engineering’s direct
liability for Decedent’s acts of sexual battery, which require a showing that
the conduct was within the scope of Decedent’s employment.
In fact, much of the authority upon which the parties have relied apply to claims
of negligence – not claims for intentional conduct such as sexual battery.
(See e.g., Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 [“To
state a cause of action for negligence, a plaintiff must establish the
defendant owed a legal duty of care.”]; Regents of University of California
v. Superior Court (2018) 4 Cal.5th 607, 613 [“[The plaintiff] sued the
university and several of its employees for negligence, arguing they failed to
protect her from [a third parties’] foreseeable violent conduct.”].)
Similarly, Defendant Marvin Engineering’s reliance on Aaronoff
v. Martinez-Senftner (2006) 136 Cal.App.4th 910 is misplaced as the issue
there was whether the revival portion of Code of Civil Procedure section 340.1
applied to claims which have not been asserted in the instant action. (Id.
at p.919, [“Plaintiff claims the 2002 amendments to section 340.1 revived
her previously time-barred claims. Defendants argue the revival provisions
of section 340.1 do not apply to the claims against them. We shall
conclude defendants are correct.”].)
Relying on the Witkin Summary of Law and the Supreme Court’s
opinion in Lisa M., Plaintiff contends in opposition that “Marvin
Engineering's liability not does not depend on respondeat superior.” The
cited Witkin section provides that “The liability of the principal for torts of
the agent or employee is not always based on the doctrine of respondeat
superior … It may result from the principal's direction or authorization
to perform a tortious act, the principal being liable for his or her own
wrong.” (1. [§ 173] Wrongful Act Directed or Authorized., 3 Witkin,
Summary 11th Agency § 173 (2022), [italics added].) This section merely
notes that if Defendant Marvin Engineering ratified the alleged conduct or gave
express authorization – both of which have not been alleged – Defendant Marvin Engineering
could be directly liable. (See Civ. Code, § 2339.)
As to Lisa M., Plaintiff states that “[t]he Court in Lisa M.
recognized that the hospital might be directly liable for breach of duty to the
plaintiff, on remand. (Lisa M, at p. 306.) For example, ‘[a] principal
may be held liable for harm caused by an agent to a third party with whom the
principal has a special relationship .... ‘ (Id., citing Rest.3d, Agency
§ 7.05(2).)” (Opp. to Marvin Engineering Demurrer at p.6:20-24.)
However, this is a clear misquote as Lisa M. does not state this in the
order. Rather, the Supreme Court noted that the action was remanded as to
the negligence claim. (Lisa M., supra, 12 Cal.4th at p.306
[“The Court of Appeal declined to decide whether plaintiff's cause of action
for negligence could survive summary judgment. The court therefore did not
decide whether Hospital fulfilled its duty of care under the circumstances nor
did it resolve any issue as to the adequacy of, or necessity for, plaintiff's
expert declaration. Consequently, we consider it appropriate to remand the
matter to the Court of Appeal for decision in the first instance on plaintiff's
negligence cause of action.”].)
As noted above, Plaintiff has not alleged negligence against Defendant Marvin
Engineering. There is no allegation that Defendant Marvin Engineering had
a duty a to protect, that the duty to protect was breached, or that Defendant
Marvin Engineering’s negligence was the proximate cause of Decedents
intentional conduct as required to state such a claim under negligence.
Accordingly, as the complaint fails to sufficiently allege liability through
respondeat superior, and as no other basis for liability has been alleged,
Marvin Engineering’s demurrer is SUSTAINED.
Discussion – Motions to Strike
Defendant Estate moves to strike the
allegations against it. As the Court has
already sustained the demurrer to the entirety of the complaint, Estate’s
motion to strike is MOOT.
Leave
to Amend
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. (Goodman v. Kennedy, supra,
18 Cal.3d at p. 348; Lewis v. YouTube,
LLC (2015) 244 Cal.App.4th 118, 226.)
As to Defendant Estate’s demurrer, Probate
Code section 9351 bars the instant action, and thus, there is no reasonable possibility of successful amendment. Therefore, leave to amend as to Defendant
Estate’s demurrer is DENIED.
As to Defendant Marvin
Engineering, the complaint is not barred as a matter of law. Rather, there is a reasonable possibility
that Plaintiff may provide further allegations as noted above. Moreover, as this
is the first time that the Court has sustained a demurrer to Plaintiff’s
complaint, the Court finds it is proper to allow Plaintiffs an opportunity to
cure the defects discussed in this order as the Defendant Marvin Engineering’s
demurrer. (See Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment
Agency (2002) 108 Cal.App.4th 1028, 1037.)
Therefore, leave to amend is granted as to Defendant Marvin
Engineering’s demurrer.
CONCLUSION AND
ORDER
Based on the foregoing, Defendant Jennifer
Lechter, as the Personal Representative of the Estate of Gerald M. Friedman’s
demurrer is SUSTAINED WITHOUT LEAVE.
Defendant Jennifer Lechter, as the
Personal Representative of the Estate of Gerald M. Friedman is to file a
proposed judgment of dismissal within ten (10) days of notice of this order.
Defendant Marvin Engineering, Con., Inc’s
demurrer is SUSTAINED WITH LEAVE TO AMEND.
Plaintiff is to file an amended complaint
within 10 days of notice of this order.
The case management conference is
continued to April 28, 2023 at 8:30 am.
The Court is inclined to consolidate the
Lead Case (19STCV26182) with the instant action (21STCV35382) for all purposes,
including trial. The Court hereby sets
an OSC re consolidation for April 28, 2023 at 8:30 am. Any party opposed to the consolidation of the
two matters must file and serve a written opposition to consolidation by April
5, 2023 and must appear on April 28, 2023 at 8:30 am and show cause why the two
actions should not be consolidated for all purposes.
The Court notes that Bianca Alexis
Fairchild’s counsel has reserved a May 1, 2023 hearing for a motion to be
relieved in both actions (19STCV26182 and 21STCV35382). The parties’ practice of making CRS
reservation without filing moving papers is exacerbating the congestion of the
Court’s motion calendar and preventing litigants in other cases from being able
to have their motions heard sooner. Moving
Counsel is ordered to either cancel the two CRS reservations or to file and
serve moving papers for both reserved motions within 24 hours. Failure to comply may result in sanctions
and/or cancellation of the CRS reservations.
Moving Parties to give notice and file
proof of service of such.
DATED: March 10, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court