Judge: Keri G. Katz, Case: 37-2021-00011957-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - December 14, 2023
12/15/2023 08:30:00 AM C-74 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Keri Katz
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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2021-00011957-CU-PO-CTL FISCHER VS ALLAN [IMAGED] CAUSAL DOCUMENT/DATE FILED:
Defendant Samantha Allan's demurrer to Plaintiff's third amended complaint is OVERRULED as to the sexual battery/CC § 1708.5 and sexual assault/stalking causes of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the fraud cause of action.
The court first addresses the procedural and evidentiary issues. As to the procedural issues Plaintiff raises, the court finds Allan's notice sufficient. Also, although the court finds Allan's counsel's attempt to meet and confer lacking, such circumstances do not preclude a substantive ruling. 'A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.' CCP § 430.41(a)(4). Plaintiff's 'OBJECTION TO JUDICIAL NOTICE' [ROA 173, 174] asserts objections, not to Allan's request for judicial notice, but to the exhibits attached to the Declaration of Jason A. Specht. The court sustains Plaintiff's objections to Exhibit 2 and Exhibit 3 attached to the Specht declaration. These documents are not properly before the court on this demurrer. Allan's request for judicial notice is DENIED as to item 1 and GRANTED as to items 2-6.
The complaint alleges four causes of action for sexual battery, sexual assault/stalking, fraud and intentional infliction of emotion al distress. Allan demurrers to the first three causes of action only.
Sexual Battery CC § 1708.5 Allan's demurrer is OVERRULED.
Plaintiff brings this action pursuant to CC § 1708.5. This section provides, in part: (a) A person commits a sexual battery who does any of the following: (1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.
(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results.
(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.
(4) Causes contact between a sexual organ, from which a condom has been removed, and the intimate Calendar No.: Event ID: TENTATIVE RULINGS
3001936 3 CASE NUMBER: CASE TITLE: FISCHER VS ALLAN [IMAGED] 37-2021-00011957-CU-PO-CTL part of another who did not verbally consent to the condom being removed.
(5) Causes contact between an intimate part of the person and a sexual organ of another from which the person removed a condom without verbal consent.
. . . .
Although not expressly stated, this 'section is interpreted to require that the batteree did not consent to the contact.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225. See also, Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 citing Prosser on Torts (4th ed. 1971) § 9, pp. 34-37 ['[t]he element of lack of consent to the particular contact is an essential element of battery'].
The Third Amended Complaint alleges: 20 DEFENDANT'S actual intention was to force or frighten PLAINTIFF into sexual acts to which he would not give his consent and given the emotional issues he described to DEFENDANT, could not give consent.
. . . .
22. The above conduct ultimately resulted in him having sex with her though he never willingly agreed to it.
Allan argues that Plaintiff's prior pleadings allege facts demonstrating that the alleged sexual interactions between Plaintiff and Allan were consensual. The court finds neither the portion of the Amended Complaint (identified by Allan as 'FAC') nor the portion of the Second Amended Complaint (identified by Allan as 'SAC') establish the facts alleged in the Third Amended Complaint as inconsistent with prior pleadings. The allegations of the FAC Allan relies on are inconclusive on the issue of consent. The allegations of the SAC Allan relies on ('. . . PLAINTIFF feeling cornered more and more, acquiesced against his free will') do not contradict the allegations of the Third Amended Complaint on the issue of consent. The factual issue of whether Plaintiff consented is beyond the scope of this demurrer.
Sexual Assault/Stalking Allan's demurrer is OVERRULED.
Allan argues that this cause of action 'is presumably a claim for stalking pursuant to Civil Code section 1708.5.' Allan does not address the issue of a common law claim for assault. As set forth in Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, [t]he 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. (So v. Shin (2013) 212 Cal.App.4th 652, 668–669, 151 Cal.Rptr.3d 257.) Carlsen, 227 Cal.App.4th at 890.
Liberally construing the complaint [CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635] the court finds the Third Amended Complaint alleges facts sufficient to support a finding as to each of these elements [Cplt. ¶¶ 13, 14, 18-23, 25-28]. Although Allan also challenges the statutory sexual assault claim, 'a general demurrer does not lie as to a portion of a cause of action, and if any part of a Calendar No.: Event ID: TENTATIVE RULINGS
3001936 3 CASE NUMBER: CASE TITLE: FISCHER VS ALLAN [IMAGED] 37-2021-00011957-CU-PO-CTL cause of action is properly pleaded, the demurrer will be overruled.' Fire Insurance Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452 citing Campbell v. Genshlea (1919) 180
Fraud Allan's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.
As pled, this cause of action is premised on Allan's filing of a domestic violence restraining order complaint [TAC ¶¶ 36, 39]. Such filing is protected by the litigation privilege. CC § 47. Plaintiff offers no argument in opposition on this point. Although Plaintiff seeks leave to amend, Plaintiff fails to proffer any facts to cure this pleading deficiency. Therefore, and because the court has previously allowed Plaintiff leave to amend as to this cause of action, the court finds Plaintiff fails to demonstrate a reasonable probability the complaint can be amended to plead a basis for liability against Allan under a fraud cause of action. Accordingly, Defendant Samantha Allan's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1143 citing Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917. See also, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Ruinello v. Murray (1951) 36 Cal.2d 687, 690.
In light of this ruling the court does not reach the other issues Allan raises as to this cause of action.
Allan shall answer within 10 days of this ruling.
If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.
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