Judge Elaine W. Mandel, Case Number: 23SMCV06082, Date: 2024-05-03 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV06082, Date: 2024-05-03 Tentative Ruling

Case Number: 23SMCV06082 Hearing Date: May 3, 2024 Dept: P

Tentative Ruling

Mendoza v. Twentieth Century Fox Film Corporation, et al., Case No. 23SMCV06082

Hearing date May 3, 2024

Defendants I.A.T.S.E. Local 80 and Local 80 IASTE Building Corporation’s Demurrer

Defendant Twentieth Century Fox Film Corporation’s Demurrer

Plaintiff sued defendants Twentieth Century Fox Film Corporation (“TCFF”), I.A.T.S.E. Local 80 Local 80 IASTE Building Corporation, Hernandez and Farrands alleging: (1) discrimination (FEHA); (2) hostile work environment (FEHA); (3) retaliation (FEHA); (4) failure to prevent discrimination, harassment and retaliation (FEHA); (5) retaliation (Labor Code §1102.5); (6) retaliation (Labor Code §98.6); (7) retaliation (Labor Code §6310; (8) wrongful termination; (9) sexual battery; (10) gender violence; (11) negligent supervision and retention; and (12) intentional infliction of emotion distress.

Plaintiff was employed by TCFF in craft services and was a union member of Local 80. Compl. ¶¶ 2, 15. Hernandez, her supervisor, instructed her to come to a restaurant to pick up her check. Id. at ¶18(a). Hernandez was with Ferrand, another supervisor, and an unknown individual, and gestured to plaintiff to have a beer he ordered. Id. at ¶18(b). Plaintiff woke up in Hernandez’s home and alleges these individuals drugged her; Hernandez sexually assaulted her. Id. at ¶18(c). Plaintiff reported the assault to police and disclosed the incident to Conover, who works with Local 80, who suggested not to mention the assault further. Id. at ¶18(e). Plaintiff spoke with Davis, Conover’s supervisor, who apologized but did not take further steps. Id.

Following the assault, Hernandez failed to provide plaintiff with her work schedule, and she was effectively terminated. Id. at ¶19. The work environment became hostile because the assailants were her supervisors. Id. Plaintiff alleges TCFF, Local 80 and Local 80 IATSE Building Corporation were agents of one another. Id. at ¶¶1, 6, 10, 18(e).

Local 80 and Local 80 IASTE Building Corporation (“Local 80 Defendants”) demur. TCFF demurs.

Request for Judicial Notice

Local 80 Defendants request judicial notice of (1) the Collective Bargaining Agreement between IATSE Local 80 and the Association of Motion Picture and Television Producers (AMPTP), with an effective date of 2009 to 2012; (2) Articles of Incorporation for the IATSE Local 80 Building Corporation; (3) IRS Tax Exemption Letter for IATSE Local 80 Building Corporation; (4) California Franchise Tax Exemption Letter for the IATSE Local 80 Building Corporation; and (5) Administrative Complaint and Right to Sue Letter Issued by the California Department of Fair Employment and Housing. Granted pursuant to Evidence Code §452(c), (h).

TCFF requests judicial notice of the California Civil Rights Department (“CRD”) Notice to Complainant’s Attorney, Notice of Filing of Discrimination Complaint, Notice of Case Closure and Right to Sue, and Complaint of Employment Discrimination Before the State of California Civil Rights Department Under the California Fair Employment and Housing Act. Granted pursuant to Evidence Code §452(c), (h).

Plaintiff requests judicial notice of: (1) the Report of Assembly Committee on Judiciary, AB 2777 (May 3, 2022); (2) the Senate Committee on Judiciary, Background Information Request for AB; and (3) the Complaint of Heather Shepherd, filed in the matter of Heather Shepherd v. Blue Sky Sutiod, Inc., et al., Case No. Case 3:12-cv-00103-CSH (D. Conn. 2012). Granted as to items 1 and 2 pursuant to Evidence Code §452(c), as to the existence of item 3 pursuant to Evidence Code §452(d).

Claim Presentation Requirement re: Plaintiff’s FEHA Claims (1-4 COAs)

Local 80 Defendants and TCFF each demur to the FEHA claims (1-4), arguing plaintiff failed to timely submit an administrative complaint with the DFEH within one year. They argue CCP §340.16 does not extend plaintiff’s ability to exhaust administrative remedies.

Plaintiff argues the legislative purpose of Sec. 340.16 was to revive claims barred by the statute of limitations and this revives her FEHA claims.

Prior to enactment of Assembly Bill No. 9 that amended Gov. Code §12960 in 2019, former Gov. Code §12960 required a DFEH complaint alleging FEHA violations to be filed “one year.” With the alleged assault and termination in January 2012, plaintiff was to file an administrative complaint by January 2013.

Plaintiff’s reliance on Section 340.16 is misplaced; this only applies to civil actions, not administrative complaints. Before plaintiff could bring a civil action under FEHA, she was required to exhaust administrative remedies within the deadline. See Yurick v. Super. Ct. (1989) 209 Cal. App. 3d 1116, 1121.

Plaintiff argues this is contrary to the Legislature’s intent, but AB 9 is silent on this issue. Despite going into effect a year after Section 340.16 was enacted, amended Gov. Code §12960 did not include language that expired administrative claims could be revived. Even when the Legislature amended Gov. Code §12960 to extend the deadline to three years, the legislative digest and section 3 of the bill indicate the “act shall not be interpreted to revive lapsed claims.” 2019 Cal. Legis. Serv. Ch. 709 (A.B. 9). There is no basis to conclude the Legislature’s intent in enacting Section 340.16 was to revive previously expired administrative claims.

Plaintiff alleges she timely filed her administrative complaint (Compl. ¶ 25); it was filed December 22, 2023. See Local 80 Defendants’ RJN, Exh. E; TCFF’s RJN, Exh. A. Plaintiff failed to timely file the administrative complaint. Miller v. United Airlines, Inc. (1985) 174 Cal. App. 3d 878, 890. Plaintiff failed to abide exhaust her administrative remedies within one year following the alleged incident; the FEHA claims are barred. Sustained without leave to amend.

Demurrer to the Remaining Claims (5-12 COAs)

Section 340.16(a) 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.” The three or ten-year statute of limitations applies to any action “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.(b)(3).

Under the statute, a plaintiff who alleges 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 otherwise time-barred claims revived. Code Civ. Proc. §340.16(e). Based on this statutory framework and because plaintiff filed her complaint more than ten years after the alleged assault, the complaint must sufficiently alleged facts in accordance with Section 340.16(e) to revive claims against defendants. Local 80 Defendants and TCFF separately argue plaintiff failed to allege sufficient facts to revive her claims against them.

A. Local 80 Defendants

Local 80 Defendants argue the complaint fails to allege they were legally responsible for the alleged harm or that they covered up a previous instance of sexual assault. As to the former argument, they contend the complaint fails to sufficient alleged an agency relationship between them and the remaining defendants.

Plaintiff contends an agency relationship exists because Local 80 ratified the actions of its members, Farrands and Hernandez, based on Davis and Conover’s conduct. Plaintiff asserts Local 80 aided and abetted Fox and its employees. Plaintiff asserts Local 80 is an employer and agent of Fox by acting as staffing agency and liable under respondeat superior.

There are no allegations that Farrands and Hernandez are members of Local 80. There are no allegations that Conover’s statement was binding on Local 80 Defendants. It is alleged his supervisor apologized to plaintiff. The suggestion that Local 80 Defendants are agents of TCFF is contradicted by allegations in the complaint. Local 80 Defendants are alleged to be labor organizations. See Compl. ¶¶4(c), 8. This creates a reasonable inference that it is Local 80 Defendants’ interest to promote the benefit of its members, not of their counterparty TFCC.

Further allegations would need to be alleged to support Plaintiff’s theory that Local 80 Defendant were merely agents of TCFF. Respondeat superior has not been sufficiently alleged because Local 80 was not the assailants’ employer. Plaintiff’s allegations are insufficient to establish liability. See Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 112.

Plaintiff’s allegations that Local 80 Defendants engaged in a cover up are conclusory because there are no allegations as to how their actions constitutes a cover up. A “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.” Code Civ. Proc. §340.16(e)(4)(A). Conover’s one alleged statement is insufficient to suggest the Local 80 Defendants engaged in a concerted effort to incentivize a prior victim to remain silent. Sustained with leave to amend.

B. TCFF

TCFF argues the allegations are insufficient to trigger revival under Section 340.16(e). TCFF argues the complaint fails to allege it was legally responsible for the alleged harm, and there was no causal connection to establish liability.

Plaintiff alleges a casual nexus between her protected activity and the retaliatory conduct. Plaintiff allegedly resisted the assault and reported the crime the following day. See Compl. ¶¶ 18(c)-(d). Plaintiff was terminated a week later. Id. at ¶ 19. TCFF’s demurrer to the fifth through eighth causes of action is overruled on this ground.

As to the intentional torts alleged, the complaint sufficiently alleges a theory of liability pursuant to respondeat superior. TCFF contends the alleged assault perpetrated by Hernandez and Ferrands substantially deviated from their employment duties, so TCFF should not be liable for personally motivated misconduct. TCFF relies on Lisa M. v. Henry Mayo Newhall Mem’l. Hosp. (1995) 12 Cal. 4th 291, 296-297, Myers v. Trendwest Resorts (2007) 148 Cal. App 4th 1403, 1426 and similar cases. These cases were decided at summary judgment, not at the pleading stage.

At this point, plaintiff alleges respondeat superior liability. The court must take as true all allegations on demurrer. The complaint alleges the assault arose out of plaintiff’s employment because it is alleged plaintiff was lured to the bar to pick up her check. See Compl. ¶ 18(b). Plaintiff’s supervisors Hernandez and Ferrands are alleged to have abused job-created authority. See Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 209. TCFF’s demurrer to the ninth, tenth, and twelfth causes of action are overruled on this ground.

As to the eleventh cause of action for negligent supervision and retention, TCFF argues the complaint fails to allege facts that the sexual assault was foreseeable. The pleadings fail to allege TCFF knew or had reason to know of Hernandez and Farrands would commit sexual abuse. Sustained.

TCFF argues the complaint fails to allege it engaged in a cover up or attempt to cover up a previous instance or allegations of sexual assault. The complaint relies on a conclusory allegation, stating TCFF “engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.” Even though a plaintiff may allege facts with less particularity when “when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense,” this does not excuse use of conclusory allegations because it does not provide TCFF with sufficient notice to prepare a defense. See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550. Sustained.

Accordingly, because the complaint does not allege sufficient facts to trigger revival under Section 340.16(e), TCFF’s demurrer to the fifth through twelfth causes of action are sustained with leave to amend.

Dismissal re: Local 80 IATSE Building Corporation

Local 80 IATSE Building Corporation separately demurs, arguing it is not a properly named defendant because it “is not a labor organization, does not have any members, does not provide any representational services, and has no contractual or other relationships whatsoever with Fox or the individual defendants.” Plaintiff argues the assertion that Local 80 IATSE Building Corporation is not a labor organization is inappropriate at the pleading stage. This would require a factual finding, beyond the scope of the demurrer. Overruled.

Defendants I.A.T.S.E. Local 80 and Local 80 IASTE Building Corporation’s Demurrer SUSTAINED without leave to amend as to the first through fourth causes of action and SUTAINTED with leave to amend as to the fifth through twelve causes of action.

Defendant TCFF’s demurrer SUSTAINED without leave to amend as to the first through fourth causes of action and SUTAINTED with leave to amend as to the fifth through twelve causes of action.

Plaintiff to file an amended complaint within 20 days.