Judge: Joel L. Lofton, Case: 21STCV09850, Date: 2023-03-24 Tentative Ruling

Case Number: 21STCV09850    Hearing Date: March 24, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 23, 2023                                   TRIAL DATE: April 6, 2023

CASE:                         MERVAT AL-JAMAL, an individual, v. RICHARD SAYEGH, an individual; and DOES 1-25, inclusive.  

CASE NO.:                 21STCV09850

DEMURRER WITH MOTION TO STRIKE

DEMURRING PARTY:        Defendant Richard Sayegh          

RESPONDING PARTY:       Plaintiff Mervat Al-Jamal

SERVICE:                              Filed October 14, 2022

OPPOSITION:                       Filed November 4, 2022

REPLY:                                   Filed November 28, 2022

RELIEF REQUESTED

            Defendant demurrers to Plaintiff’s second, third, fourth, and sixth cause of action.

            Defendant moves to strike Plaintiff’s prayer for punitive damages.

BACKGROUND

             This case arises out of Plaintiff Mervat Al-Jamal’s (“Plaintiff”) claim that Defendant Richard Sayegh repeatedly made unwanted sexual advances, inappropriately touched her, and sexually assaulted her during chiropractic treatments from March 19, 2019 to June 5, 2019. Plaintiff filed a first amended complaint (“FAC”) on September 10, 2021, alleging seven causes of action for (1) freedom from violence or intimidation, (2) assault, (3) battery, (4) sexual battery, (5) gender violence, (6) intentional infliction of emotion distress, and (7) negligence.

TENTATIVE RULING

            Defendant’s demurrer is OVERRULED in its entirety.

            Defendant’s motion to strike is DENIED.

LEGAL STANDARD

            Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (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 v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)   

DISCUSSION

             Causes of Action for Assault, Battery, and Sexual Battery

            Defendant argues that Plaintiff’s second, third, and fourth causes of action fail to allege facts sufficient to state a claim.

            “The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. [Citation.] The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching. [Citation.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

            “A cause of action for sexual battery under Civil Code section 1708.5 requires the batterer intend to cause a ‘harmful or offensive’ contact and the batteree suffer a ‘sexually offensive contact.’ [Citation.] Moreover, the section is interpreted to require that the batteree did not consent to the contact.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1225-26.)

            Defendant argues that Plaintiff’s allegations fail because she alleges she visited Plaintiff repeatedly after the initial incident. Defendant’s argument is essentially that this court should make a finding of fact that Plaintiff was not the victim of a tort based on her allegations. Defendant’s argument is misplaced. “[W]ell pleaded facts of [a] complaint must be taken as true for the purposes of the demurrer.” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 785.) The court declines to reach Defendant’s proposed conclusion.

            Defendant also argues that Plaintiff’s allegations fail to demonstrate Defendant’s intent. However, once again, Defendant’s arguments are misplaced because they are more akin to arguing a certain finding of fact should be made. Plaintiff alleges Defendant placed Plaintiff in a reasonable fear of being subject to bodily harm and consented touching (FAC ¶ 27), Plaintiff did not consent (id. ¶ 28), Defendant acted with intent (id. ¶ 31), she was harmed as a result of Defendant’s conduct. (Id. ¶¶ 29-30.) Plaintiff includes similar allegations to support her claim for battery (id. ¶¶ 32-38) and her claim for sexual battery (id. ¶¶ 39-47.) At the pleading stage, Plaintiff’s allegations are sufficient.

            Sixth Cause of Action for Intentional Infliction for Emotional Distress

            Defendant argues that Plaintiff’s sixth cause of action fails because she fails to establish outrageous conduct and that she suffered severe emotional distress.

            “ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” ’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “ ‘Conduct, to be “ ‘outrageous’ ” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ ” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

            Defendant’s arguments fail here because he, in part, again argues that a certain finding of fact should be made based on Plaintiff’s allegations. Defendant attempts to characterize Plaintiff’s allegations as depicting “juvenile behavior arising from infatuate”.

            “A defendant's conduct is considered to be outrageous if ‘it is so “ ‘ “extreme as to exceed all bounds of that usually tolerated in a civilized community.” ’ ” ’ ” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) Here, Plaintiff alleges that Defendant inappropriately touched her and made unwanted sexual advances on ten separate occasions. (FAC ¶¶ 9-16.) Plaintiff alleges that Defendant withheld Plaintiff’s medical records and instructed her to not tell her husband. (Id. ¶ 10.) Plaintiff alleges Defendant made further threats to coerce her. (Id. ¶ 11.) Plaintiff alleges Defendant threatened to take pictures of her after demanding she send him pictures of herself. (Id. ¶ 15.) Plaintiff alleges that Defendant exposed his penis to her and attempted to force her into having sex with him. (Id. ¶ 16.)

            Plaintiff has sufficiently alleged outrageous conduct. Plaintiff also alleges she suffered severe emotion distress. (FAC ¶ 56.) Plaintiff has alleged facts sufficient to state a claim for intentional infliction of emotional distress.

            Motion to Strike Punitive Damages

            Defendant also moves to strike Plaintiff’s prayer for punitive damages.

            Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a). A plaintiff seeking punitive damages “must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. [Citation.] Punitive damages may not be pleaded generally.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)

            As previously discussed, Plaintiff alleges that Defendant inappropriately touch her over the course of ten incidents, threatened her, withheld her medical records, and attempted to have sex with her. Plaintiff has sufficiently alleged that Defendant acted with oppression, fraud, or malice.

CONCLUSION

            Defendant’s demurrer is OVERRULED in its entirety.

            Defendant’s motion to strike is DENIED.

            Moving Party to give notice.

Dated:   March 23, 2023                                 ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org