Judge: H. Jay Ford, III, Case: 22STCV27109, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV27109    Hearing Date: March 23, 2023    Dept: O

Case Name:  Doe v. Men’s Health Foundation, et al.

SUBJECT:                 (1) DEMURRER TO COMPLAINT

                                    (2) MOTION TO STRIKE

MOVING PARTY:   Defendant Men’s Health Foundation  

RESP. PARTY:         Plaintiff John Doe

TENTATIVE RULING

            Defendant Men’s Health Foundation’s Demurrer to the 3^rd cause of action for gender violence under CC §52.4 and 8^th cause of action for general negligence is SUSTAINED WITHOUT LEAVE TO AMEND and to the 1^st cause of action for negligent hiring, etc., 2^nd cause of action for negligent failure to warn, 4^th cause of action for sexual harassment, 7^th cause of action for IIED, 9^th cause of action for violation of Unruh Act and 10^th cause of action for violation of Bane Act is OVERRULED. 

            Defendant Men’s Health is not named in the 5^th cause of action for sexual assault or the 6^th cause of action for sexual battery. 

            Defendant Men’s Health Foundation’s Motion to Strike is DENIED as to Plaintiff’s request for prejudgment interest and attorney’s fees and GRANTED with 10 days leave to amend as to the punitive damages claim. 

I.  Demurrer to 8^th cause of action for general negligence (medical malpractice)—SUSTAIN WITHOUT LEAVE TO AMEND

            Defendant demurs to the 8^th cause of action for general negligence (medical malpractice) on grounds that no negligent medical treatment is alleged.  Plaintiff concedes in opposition that a claim for medical malpractice is not stated but argues the facts supports a claim for general negligence.  Given Plaintiff’s concession, the 8^th cause of action for medical malpractice is duplicative of Plaintiff’s 1^st and 2^nd causes of action for negligence causes of action for negligent hiring, supervision and retention and negligent failure to warn.  Demurrer to the 8^th cause of action for general negligence (medical malpractice) is SUSAINED WITHOUT LEAVE TO AMEND.

II.  Demurrer to the 3^rd cause of action for gender violence under CC §52.4—SUSTAIN WITHOUT LEAVE TO AMEND.

            “Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence.”  CC §52.4(e).  Plaintiff does not allege any acts of gender violence personally committed by Defendant Men’s Health.  The only alleged acts of gender violence were committed by Dos Santos on 8-20-22.  See FAC, ¶¶11-17, 42. 

            Plaintiff concedes there is no case holding that the doctrine of ratification satisfies the “personally committed” requirement of Civil Code §52.4(e).  Plaintiff cites Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489-90 as persuasive authority. Fretland found an employer could be held liable for violation of Labor Code §§3601(b) and 3602(c) based on ratification.  See Fretland, supra, 69 Cal.App.4^th at 1489-1490.  Fretland did not deal with CC §52.4(e), nor is the language limiting an employer’s liability under Labor Code §3601(b) similar to that in Civ. C. §52.4(e).  Most importantly, Labor Code §3601(b) does not require that the violation be “personally committed” by the employer:  “In no event, either by legal action or by agreement whether entered into by the other employee or on his or her behalf, shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee under paragraph (1) or (2) of subdivision (a).”  Lab. C. §3601(b). 

II.  Demurrer to 4^th cause of action for sexual harassment, 7^th cause of action for IIED, 9^th cause of action for violation of Unruh Act and 10^th cause of action for violation of Bane Act—OVERRULE

            Defendant Men’s Health demurs the 4^th cause of action for sexual harassment, 7^th cause of action for IIED, 9^th cause of action for violation of Unruh and 10^th cause of action for violation of the Bane Act on grounds that Dos Santos’s sexual assault of Plaintiff was outside the course and scope of his employment.  Defendant argues it therefore cannot be held vicariously liable for Dos Santos’s intentional sexual assault of Plaintiff.

            Courts have generally held that an employer is not liable under the doctrine of respondeat superior for sexual assaults committed by an employee.  See Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 302 (hospital not liable for misconduct of ultrasound technician who sexually molested patient during ultrasound examination at hospital); Samantha B. V. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5^th 85, 107-108; John Y. v. Chaparral Treatment Center (2002) 101 Cal.App.4th 565, 574 (refusal to give jury instruction on vicarious liability of residential treatment center for troubled youth was proper; sodomy of minor resident by counselor was undertaken solely for personal gratification); Doe 1 v. Murrieta (2002) 102 Cal.App.4th 899, 906 (city and its police department were not liable for sexual abuse of minors by police officer who was their advisor in department’s youth explorer program); 3 Witkin, Summary of Cal. Law (11th ed. 2017) Agency and Employment, §201, p. 263; but see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 217 (city liable for assault by a police officer in view of the considerable power and authority a police officer possesses). 

The test in California is not whether it is foreseeable that employees might act in such a way as to give rise to civil liability, but whether the employee’s act is foreseeable in light of the duties the employee is hired to perform. Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.  Whether a tort was committed within the scope of employment is ordinarily a question of fact; it becomes a question of law, however, where the undisputed facts would not support an inference that the employee was acting within the scope of his employment.  (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 [citations omitted].)

“But a sexual tort will be considered to be within the scope of employment if its motivating emotions were fairly attributable to work-related events or conditions.” Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 301; Samantha B., supra, 77 Cal.App.5th at 107–108 (reversing court’s granting of nonsuit based on Lisa M. where there was sufficient evidence for jury to conclude hospital employee who sexually abused plaintiffs who were patients at acute psychiatric hospital, was acting in course and scope of his employment due to hospital policy of allowing male workers 20 minutes alone with patients, providing inadequate training and mental health workers’ involvement with patients over long period of time).  Thus, where an employee’s interaction with a victim is not brief, the duties not technical, the victims vulnerable and there is involvement between the employee and the victim over “an extended period of time,” a jury could conclude that the motivating emotions of an employee who sexually assaults a patient are fairly attributable to the work-related events or conditions and that the employee was acting within the scope of employment. 

In addition, an employer may be held liable for an employee’s intentional torts, like sexual assault, where the employer ratified the employee’s conduct.  “As a matter of law, however, sexual harassment is not within the scope of employment even where the harassing employee is the plaintiff's supervisor.  A plaintiff therefore may not hold an employer liable for sexual harassment under the doctrine of respondeat superior.  [¶]  What this argument fails to recognize is that plaintiff need not necessarily rely upon the doctrine of respondeat superior. A principal is liable when it ratifies an originally unauthorized tort. The failure to discharge an agent or employee may be evidence of ratification…If the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages.”  Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4^th 833, 852 (employer could be held liable for employee’s assault, battery and false imprisonment of fellow employee based on allegations of ratification; summary judgment based on absence of respondeat superior liability was error). Failure to discharge an employee who is guilty of an oppressive act towards another will support a finding that the employer ratified the acts of the employee.  Id.

“As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.  The failure to discharge an employee who has committed misconduct may be evidence of ratification.  The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.  Whether an employer has ratified an employee's conduct is generally a factual question.”  Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169–170. 

As in Murillo, Defendant Men’s Health fails to recognize that Plaintiff need not rely on respondeat superior to hold it liable for Dos Santos’s sexual assault. Plaintiff alleges that Men’s Health ratified Defendant Dos Santos’s actions.  See FAC, ¶¶5, 8, 52.  “Ratification is an ultimate fact; and if it can be inferred, the acts from which it can be inferred are evidence, and have no place in findings of fact.”  Jones v. Clark (1871) 42 Cal.180, 186. 

Defendant’s demurrer does not attack the sufficiency of the ratification allegations.  Defendant argues on reply that ratification only applies in employment law cases but supplies no authority imposing such a limitation on the doctrine of ratification as grounds to hold an employer liable for the torts of an employee.  See Murillo, supra, 65 Cal.App.4^th at 852 (ratification applies to employer for employee’s actions); Baptist, supra, 143 Cal.App.4^th at 169-170 (plaintiff was motorcyclist injured by employer defendant’s employee; ratification asserted but not established). 

Defendant argues Plaintiff fails to allege its actual knowledge of Dos Santos’s assault on Plaintiff.  However, Plaintiff alleges ratification, which is an ultimate fact per Jones.  Plaintiff need not allege supporting evidentiary facts.  Defendant fails to cite any authority holding that ratification must be plead with specificity or that acts of ratification must be pled to support the claim of ratification. 

III. 1^st cause of action for negligent hiring, etc. and 2^nd cause of action for negligent failure to warn, train, etc.—OVERRULE

Defendant demurs to the Plaintiff’s negligence claims on grounds that Plaintiff fails to allege facts establishing Defendant’s prior knowledge of Dos Santos’ unfitness for the position.  A cause of action for negligent hiring, supervision or retention requires that an employer “knew or should have known” that the employee was or became unfit, incompetent and this unfitness or incompetence created a particular risk to other.”  CACI 426; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139. 

However, Plaintiff alleges at ¶¶21-22 that Defendant knew or should have known of Dos Santos’s unfitness.  While phrased in the alternative, Plaintiff alleges that Defendant knew of Dos Santos’s unfitness and propensity to sexually assault and harass patients.  Defendant’s knowledge of Dos Santos’s unfitness and propensity to sexually assault patients is itself an ultimate fact.  Plaintiff sufficiently alleges the prior knowledge required to state a claim for negligent, hiring, etc. and negligent failure to warn. 

IV.  Motion to Strike

            Defendant’s motion to strike the request for prejudgment interest is DENIED.  Defendant cites Greater Westchester HOA v. City of Los Angeles (1979) 26 Cal.3d 86, 103 for the broad general proposition that “prejudgment interest is not permitted in personal injury cases.”  See Motion to Strike, 18:24.  However, Greater Westchester does not stand for this broad proposition.  Greater Westchester acknowledged that Civil Code §3288 permits “discretionary prejudgment interest for unliquidated tort claims” and that damages for intangible, noneconomic aspects of mental and emotion injury” are “inherently nonpecuniary, unliquidated and not readily subject to precise calculation.”  Greater Westchester, supra, 26 Cal.3d at 103.  If anything, Greater Westchester found that in the particular case of nuisance before it, the rule disapproving prejudgment interest on general damages for suffering applied.  Id.  It does not stand for the general proposition that prejudgment interest is not allowed at all in personal injury cases, even on special damages, e.g. medical bills, etc.

            Defendant’s motion to strike the attorney’s fees request is DENIED.  Defendant argues Plaintiff’s claim for fees is based entirely on the Unruh and Bane Act claims, which it maintains are insufficiently pleaded against it.  However, as discussed in connection with the demurrer, Plaintiff alleges these claims against Men’s Health based on ratification.

            Defendant’s motion to strike punitive damages is GRANTED with 10 days leave to amend.  “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

“Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature.”  College Hospital Inc. v. Supr. Ct. (1994) 8 Cal.4th 704, 726.  To allege punitive damages against an employer based on ratification of an employee’s malicious, fraudulent or oppressive acts, the plaintiff must plead facts to show that the employer ratified those acts pursuant to CC §3294(b), including actual knowledge of the employee’s malicious, fraudulent or oppressive acts. The plaintiff must also allege that the ratification was by an officer, director or managing agent of the corporation.  See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 620 (“Accordingly, once again, if Ms. Fisher properly pleads a sexual harassment cause of action, she will plead sufficient facts to support punitive damages allegations against Dr. Tischler. However, in order to successfully plead punitive damage allegations against SPPH based on Dr. Tischler's acts, Ms. Fisher will have to plead facts to show that SPPH ratified those acts pursuant to Civil Code section 3294, subdivision (b).”). 

To the extent Plaintiff seeks punitive damages against Men’s Health based on ratification, Plaintiff does not expressly allege Men’s Health’s actual knowledge of Dos Santos’s sexual assault of Plaintiff or the acts he believes demonstrate Men’s Health’s ratification of Dos Santos’s sexual assault.  Finally, Plaintiff does not allege that the ratification was on the part of an officer, director or managing agent of the corporation.   

To the extent Plaintiff seeks punitive damages based on advanced knowledge of unfitness, Plaintiff alleges this advanced knowledge in ¶¶21-22.  However, Plaintiff fails to allege that an officer, director or managing agent had that advance knowledge.